Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedKakamega ELC Case No. 46 of 2019· [2019] KEELC 704 (KLR)

Flora Alwala Oripa v Prajapati Pravinbhai Jivabhai & another ; Meridina Alwala & 2 others (Interested Parties) [2019] KEELC 704 (KLR)

Environment and Land Court
27 November 2019
NMN.A. Matheka
800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kakamega court struck out a land suit because the same dispute between the same parties was already pending in another case, awarding costs to the winner.

What this practically means

#

Executive summary

#
The applicant, Prajapati Pravinbhai Jivabhai, moved the court by notice of motion dated 24th September 2019 under Section 3 & 3A of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules 2010, seeking dismissal of Kakamega ELC Case No. 46 of 2019 as scandalous, frivolous, vexatious, duplex and an abuse of process, on the ground that Kakamega ELC Case No. 120 of 2017 involving the same parties and cause of action was already pending. The respondent, Meridina Alwala, as personal representative of the late Ainea Alwala Odwogo, explained that she filed the later suit to pursue a claim of fraud against the applicant and Mr. Samuel Atswong'o Alwala, whom she said colluded to defraud the deceased of Kakamega/Municipality Block 1/220. She said she could not counter-claim against co-defendants in ELC 120 of 2017, and she supported a pending consolidation application by the plaintiffs in that suit. The court compared the two suits and found the parties, subject matter and reliefs identical, both arising from the impugned transfer of the deceased's parcel. Relying on Sections 6 and 7 of the Civil Procedure Act on sub judice and res judicata, the court held the suit misconceived, duplex and sub judice, struck it out, and awarded costs to the applicant. Delivered at Kakamega on 27th November 2019 by N.A. Matheka, Judge.

Key legal issues

#
01

Whether the later suit is sub judice and duplex

Holding

The suit is struck out as it is sub judice ELC 120 of 2017, involving the same parties, subject matter and reliefs.

Reasoning

The court compared the two suits for common questions of law or fact, common transaction and convenience. It found the parties, subject matter and reliefs identical, both arising from the impugned transfer of Kakamega/Municipality Block 1/220 from the late Ainea Alwala Odwogo to Prajapati Pravinbhai Jivabhai, and applied Sections 6 and 7 of the Civil Procedure Act to strike out the later suit.

p. 1

Legal principles established

#
  • A suit whose matter is directly and substantially in issue in a previously instituted suit between the same parties is barred by Section 6 of the Civil Procedure Act and is duplex and an abuse of process.

Court orders

#
  1. 1.The suit Kakamega ELC Case No. 46 of 2019 is struck off
  2. 2.Costs of the application and the suit awarded to the applicant
Jurisdiction invoked
Section 3 & 3A Civil Procedure Act, Order 2 Rule 15 and Order 11 Rule 3 Civil Procedure Rules 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Flora Alwala Oripa v Prajapati Pravinbhai Jivabhai & another ; Meridina Alwala & 2 others (Interested Parties) [2019] KEELC 704 (KLR)", Case Analysis (2019). Kakamega ELC Case No. 46 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/704/eng@2019-11-27

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