Philip Odero Makabong’o v Joseph Okech Nyamanga [2019] KEELC 411 (KLR)
The bottom line
#A Kenyan court stayed a second land lawsuit because the same dispute over the same land was already pending in another case filed first.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice under section 6 of the Civil Procedure Act
The suit is barred by the sub judice doctrine because Migori ELC Case No. 860 of 2017, between the same parties over the same subject matter (LR Kamagambo/Kanyajuok/1640) with similar reliefs, was instituted first and remains pending.
The court compared the pleadings in both suits (marked JON1 and JON2) and found the parties are reversed but the same, the subject matter is the identical land parcel, and the reliefs of permanent injunction, declaration and costs are the same. Section 6 of the Civil Procedure Act ousts the court's jurisdiction to proceed with the later suit. The defendant had pleaded at paragraph 18 of the defence that the court's jurisdiction was ousted by section 6.
Whether the suit should be struck out as an abuse of process
Striking out was refused; the court instead granted stay and vacation of the ex parte injunction under prayers 2 and 3.
While accepting that striking out may be sought at any stage (citing Munyua v Attorney General and the Duchy of Lancaster case), the court held that Article 10(b) of the Constitution embodying equitable principles - first in time prevails - meant the appropriate remedy was staying the later suit rather than striking it out.
Legal principles established
#- A suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties is barred by the sub judice doctrine under section 6 of the Civil Procedure Act
Court orders
#- 1.The defendant's application dated 13th February 2019 is allowed in terms of orders 2 and 3 sought therein
- 2.The orders of temporary injunction granted against the defendant are vacated and/or set aside
- 3.Any further proceedings in this suit are stayed pending the hearing and determination of Migori ELC Case No. 860 of 2017
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 6 of the Civil Procedure Act (Cap 21); Orders 2 Rule 15(1)(d), 40 Rule 7 and 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Odero Makabong’o v Joseph Okech Nyamanga [2019] KEELC 411 (KLR)", Case Analysis (2019). Migori ELC case (Notice of motion dated 12th February 2019) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/411/eng@2019-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.