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ELCOtherApplication dated 2/11/2017 (suit number not stated)· [2018] KEELC 3587 (KLR)

William K. Koros (Sued as the administrator of the estate of Elijah C.A. Koros v Nelson Kiptoo & 6 others [2018] KEELC 3587 (KLR)

Environment and Land Court
12 March 2018
MNMwangi Njoroge
2,324 words in judgment
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The bottom line

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A Kenyan land court paused a duplicate lawsuit because the same ownership fight was already before it in another case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) on an application dated 2/11/2017 by the 7th defendant, Charles Barchigei, seeking a stay of the plaintiff's suit pending hearing of Kitale ELC Petition No. 8 of 2016, in which he is petitioner, or in the alternative striking out of the suit. He argued that under Section 6 of the Civil Procedure Act the question of his ownership and occupation of the suit land was directly and substantially in issue in both proceedings, and that the plaintiff was guilty of material non-disclosure. The 1st - 6th defendants opposed, contending a suit can only be stayed in its entirety and not at the instance of one defendant, while the plaintiff opposed, asserting that ownership had already been determined by the Court of Appeal and that the petition involved a different legal regime. The court framed a single question: whether the suit was res subjudice under Section 6 of the Civil Procedure Act. Comparing the prayers in the petition and the plaint, it found both parties fighting over LR No. 11440, with ownership central to both. It noted the distinction between plaint and petition proceedings but observed that numerous prayers in the petition were directed at a private respondent over the same land, and declined to determine the horizontal application of the Bill of Rights so as not to prejudice the pending petition. Finding striking out premature and the parties not wholly common to both proceedings, the court stayed the suit in its entirety pending determination of the petition. No costs order was made.

Key legal issues

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01

Whether the suit is res subjudice under Section 6 of the Civil Procedure Act by reason of Kitale ELC Petition No. 8 of 2016

Holding

Yes, the suit should be stayed in its entirety pending hearing and determination of the petition, since ownership of LR No. 11440 is crucial in both proceedings and not all parties are common to both.

Reasoning

The court compared the prayers in the petition and the plaint and found both litigants seeking to keep the other out of LR No. 11440, with ownership central to both. Although proceedings by plaint seek private law redress while petitions seek public law remedies, the court noted the petition contains numerous prayers against a private respondent regarding the same land. Given the overlapping issues, the pendency of the petition with an assigned hearing date, and the absence of complete identity of parties, the court opted for a stay of the entire suit rather than striking out.

p. 4
02

Whether striking out the suit was an appropriate remedy

Holding

No, striking out was premature; each case should be tried on its merits.

Reasoning

The court held that it was unnecessary to delve into the horizontal application of constitutional rights regarding the petition, so as not to prejudice the fair trial of the still-pending petition. With the overlap of issues better managed through a stay, striking out the suit would be premature. The court therefore declined the 7th defendant's alternative prayer for striking out and instead stayed the suit in its entirety.

p. 4

Legal principles established

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  • The res subjudice test under Section 6 of the Civil Procedure Act requires (1) that the matter in issue be directly and substantially in issue in a previously instituted suit, (2) that the previously instituted suit be between the same parties or parties under whom they claim litigating under the same title, and (3) that the other proceeding be still pending in a court in Kenya with jurisdiction to grant the relief claimed.
  • Where parallel proceedings raise overlapping ownership issues and not all parties are common, the appropriate remedy is a stay of the later suit pending determination of the earlier one rather than striking it out.

Court orders

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  1. 1.The suit herein is stayed in its entirety pending the hearing and determination of Kitale Petition No. 8 of 2016

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 23(1)

Cases cited (6)

  • Mike Rubia & Another v Moses Mwangi & 2 others [2014] eKLR
    Nairobi Petition No.70 of 2012
  • Uhuru Muigai Kenyatta v Nairobi Star Publication
  • Jemimah Wambui Ikere v Standard Group Ltd and Anor
    Petition No. 466 of 2012
  • Rapinder Kaur Atwal v Manjit Singh Amrit
    Petition No. 236 of 2011
  • Law Society of Kenya v Betty Sungura Nyabuto & 2 Others
    (2012) eKLR
  • B.A & Another v The Standard Group Ltd
    (2012) eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act (res subjudice / stay of suit)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "William K. Koros (Sued as the administrator of the estate of Elijah C.A. Koros v Nelson Kiptoo & 6 others [2018] KEELC 3587 (KLR)", Case Analysis (2018). Application dated 2/11/2017 (suit number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3587/eng@2018-03-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.