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ELCDismissedNot stated in the judgment text· [2019] KEELC 2804 (KLR)

Stanley Kipruto Ng’etich v Mary Barng’etuny & 2 others [2019] KEELC 2804 (KLR)

Environment and Land Court
31 May 2019
763 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

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A Kenyan court confirmed that facing a criminal case over the same land dispute as your civil suit does not pause the criminal prosecution.

What this practically means

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Executive summary

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The defendants/applicants, Mary Barng'etuny, Peter Tallam and Joseph Tallam, brought an application dated 30 May 2018 seeking a stay of proceedings in three criminal cases before the Kapsabet Principal Magistrate's Court - PMCRC Nos. 1966 of 2016 (Republic v Mary Jepkemboi Barngetuny), 2930 of 2016 (Republic v Joseph Kimeli Talam) and 2712 of 2016 (Republic v Peter K. Kemei) - pending hearing and determination of this civil suit, which had been filed earlier in 2014. The application was supported by an affidavit of Alfred Chepkwony, advocate, on grounds that the parties and subject matter in the suit and the criminal cases were the same, that the plaintiff in the suit was the complainant in all three criminal cases, and that concurrent proceedings risked conflicting decisions and amounted to an abuse of court process. The respondent opposed the application as frivolous, vexatious and an abuse of process, arguing that the mere existence of parallel civil and criminal cases does not warrant a stay. The court noted the criminal charges - illegal grazing contrary to section 8(1) as read with section 13 of Cap. 355, cutting down trees contrary to section 334 of the Penal Code, and resisting lawful arrest contrary to section 103(a) of the National Police Service Act - arising from events on Nandi/Kipkaren/Salient/365. Applying section 193A of the Criminal Procedure Code, which expressly permits concurrent criminal and civil proceedings and bars stay on grounds of overlapping issues, and finding no demonstrated malice or unlawful action by the police, the court held the orders sought were not merited. The application was dismissed with costs.

Key legal issues

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01

Whether pending civil proceedings justify a stay of criminal proceedings arising from the same facts

Holding

The application for stay was dismissed; concurrent criminal and civil proceedings are lawful under section 193A of the Criminal Procedure Code and the applicants failed to demonstrate malice or unlawful action by the police.

Reasoning

The court noted the defendants were charged with illegal grazing, cutting down trees and resisting lawful arrest arising from events on the plaintiff's land. The court applied section 193A of the Criminal Procedure Code, which expressly provides that a matter in issue in criminal proceedings also being in issue in civil proceedings shall not be a ground for stay, prohibition or delay of the criminal proceedings. The defendants also failed to demonstrate any malice on the part of the police or that the police acted unlawfully or without authority.

p. 2

Legal principles established

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  • The existence of concurrent criminal and civil proceedings on the same subject matter is not a ground for staying the criminal proceedings.

Court orders

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  1. 1.Application dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (application for stay of criminal proceedings pending determination of the civil 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, "Stanley Kipruto Ng’etich v Mary Barng’etuny & 2 others [2019] KEELC 2804 (KLR)", Case Analysis (2019). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2804/eng@2019-05-31

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