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ELCPartially AllowedMigori ELC case (Notice of motion dated 12th February 2019) - number not stated in judgment· [2019] KEELC 411 (KLR)

Philip Odero Makabong’o v Joseph Okech Nyamanga [2019] KEELC 411 (KLR)

Environment and Land Court
20 November 2019
1,353 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The defendant/applicant, Philip Odero Makabong'o, moved the Environment and Land Court at Migori by notice of motion dated 12th February 2019 seeking, principally, that the plaintiff's suit be struck out as an abuse of process, that the ex parte temporary injunction granted against him be vacated, and in the alternative that proceedings be stayed pending the hearing of Migori ELC Case No. 860 of 2017, which he had filed against the plaintiff earlier and in which the same land parcel, LR Kamagambo/Kanyajuok/1640, and similar reliefs of permanent injunction and declaration were in issue. The respondent opposed, contending that the instant suit depended not on the other ELC suit but on High Court succession cause No. 13 of 1997, under which prohibitory orders had issued against the applicant. The application was canvassed by written submissions. The court, Ongondo J, framed the question as whether the suit was sub judice. Comparing the pleadings in the two suits, the judge found the parties were the same (with roles reversed), the subject matter identical, and the reliefs substantially the same. Applying section 6 of the Civil Procedure Act, the court held that the instant suit, being the later-filed one, was barred by the sub judice doctrine. However, invoking Article 10(b) of the Constitution and the equitable principle that the first in time in equity prevails, the court declined to strike out the suit. The application was allowed in terms of prayers 2 and 3: the temporary injunction was vacated and further proceedings stayed pending determination of the earlier Migori suit. Costs were ordered to be in the cause under the proviso to section 27 of the Civil Procedure Act, relying on Samwel Kamau Macharia v KCB.

Key legal issues

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01

Whether the suit is sub judice under section 6 of the Civil Procedure Act

Holding

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.

Reasoning

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.

p. 2
02

Whether the suit should be struck out as an abuse of process

Holding

Striking out was refused; the court instead granted stay and vacation of the ex parte injunction under prayers 2 and 3.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The defendant's application dated 13th February 2019 is allowed in terms of orders 2 and 3 sought therein
  2. 2.The orders of temporary injunction granted against the defendant are vacated and/or set aside
  3. 3.Any further proceedings in this suit are stayed pending the hearing and determination of Migori ELC Case No. 860 of 2017
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 1A
  • Civil Procedure Act (Cap 21)section 1B
  • Civil Procedure Act (Cap 21)section 3A
  • Civil Procedure Act (Cap 21)section 6
  • Civil Procedure Act (Cap 21)section 27 (proviso)
  • Civil Procedure Rules 2010Order 2 Rule 15(1)(d)
  • Civil Procedure Rules 2010Order 40 Rule 7
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 51 Rule 16
  • Constitution of Kenya, 2010Article 10(b)
  • Environment and Land Court Practice Directions 2014Practice Direction number 33(a) and (b)

Cases cited (5)

  • Giella –vs- Cassman Brown and Company Limited
    (1973) EA 358
  • Wamwea –vs- Catholic Diocese of Muranga Registered Trustees
    (2003) KLR 389
  • Samwel Kamau Macharia and another –vs- KCB and 2 others
    (2012) eKLR
  • Munyua and others –vs- Attorney General
    (1976-80) KLR 83
  • Attorney General for Duchy of Lancaster –v- London and North Western Railway
    (1892) 3 Ch 274
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

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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, "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.