Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2019] KEELC 2676 (KLR)

David Kariuki Mathenge v Mary Gathoni Gathuo [2019] KEELC 2676 (KLR)

Environment and Land Court of Kenya
2 July 2019
MOM.C. Oundo
1,398 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court stopped a duplicate land case, ruling it must wait until an earlier appeal over the same land is decided.

What this practically means

#

Executive summary

#
The Respondent filed this suit on 16 March 2017 seeking orders that the Applicant exhume the remains of her deceased husband, Joseph Gathuo Githogori, allegedly illegally interred on land parcel Nyandarua/Oljoro Orok Salient/1935, together with injunctive orders restraining her from interfering with the land. The Applicant, administrator of the deceased's estate, applied by notice of motion dated 22 December 2017 under Order 2 Rule 15(a) and (b), Order 51 Rule 1 of the Civil Procedure Rules and sections 3A and 6 of the Civil Procedure Act for the suit to be struck out or dismissed as sub judice. She contended that the suit duplicated issues already determined in Nyahururu SPMCC No. 134 of 2003, from which she had appealed to Nakuru HCCA No. 168 of 2012 (now Nyahururu ELCA No. 8 of 2018), a pending appeal. The Respondent opposed, relying on Thiba Min Hydro Co. Ltd v Josephat Karu Ndiga to argue that the issues and reliefs in the two suits differed. The court examined both files, found the parties the same (save for the Applicant's capacity as administratrix) and the subject matter directly and substantially similar, with the same chain of events underlying both suits. Holding that an undecided appeal on ownership was pending, the court found the suit sub judice and stayed it pending determination of the appeal, ordered maintenance of the status quo, directed that the record of appeal be filed and served within 21 days failing which the appeal would stand automatically dismissed, and awarded costs of the application to the Applicant.

Key legal issues

#
01

Whether the present suit is sub judice Nyahururu SPMCC No. 134 of 2003 and the pending appeal in Nakuru HCCA No. 168 of 2012 (now Nyahururu ELCA No. 8 of 2018)

Holding

Yes; the parties and subject matter are the same and the issues are directly and substantially in issue in the earlier suit and the pending appeal, so the suit is stayed.

Reasoning

The court obtained the earlier file and found the parties identical except that the Applicant is administrator of the deceased defendant's estate. The subject matter of both suits is directly and substantially similar, both concerning claims to parcel Nyandarua/Oljoro Orok Salient/1935, and the chain of events leading to both suits is the same. With an undecided appeal pending that would determine ownership, proceeding would be a futile exploration of issues pending before another competent court, engaging section 6 of the Civil Procedure Act.

p. 2

Legal principles established

#
  • Where a suit is directly and substantially in issue in a previously instituted suit between the same parties or parties claiming under the same title, the later suit must be stayed under section 6 of the Civil Procedure Act

Court orders

#
  1. 1.The suit is stayed forthwith pending hearing and determination of Nakuru HCCA No. 168 of 2012, now Nyahururu ELCA No. 8 of 2018
  2. 2.Parties to maintain the status quo pending the outcome of the Appeal so as to preserve the pre-dispute state
  3. 3.The record of Appeal to be filed and served within 21 days failing which the Appeal shall stand automatically dismissed
  4. 4.Costs of the application awarded to the Applicant

Authorities

#

Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 2 Rule 15(a) and (b)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 35

Cases cited (2)

  • Kenya Planters Co-operative Union Limited vs Kenya Co-operative Coffee Milers Limited & Another
    [2016] eKLR
  • Thiba Min Hydro Co. Ltd vs Josephat Karu Ndiga
    [2013] eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act and Order 2 Rule 15(a) and (b), Order 51 Rule 1 of the Civil Procedure Rules, section 3A Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Kariuki Mathenge v Mary Gathoni Gathuo [2019] KEELC 2676 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2676/eng@2019-07-02

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