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ELCDismissedSotik Principal Magistrate's Court Case No. 13 of 2010 related judicial review (Chamber Summons, Order 53)· [2019] KEELC 2839 (KLR)

Benedeta Mabwai v William Kiplangat Rono [2019] KEELC 2839 (KLR)

Environment and Land Court
25 June 2019
JOJ.M Onyango
1,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, registered owner of land parcel KERICHO/KIPSONOI S.S/513, moved the court by Chamber Summons under Order 53 of the Civil Procedure Rules and the Law Reform Act seeking leave to apply for certiorari to quash the verdict of the Sotik Land Disputes Tribunal of 11 October 2002, which awarded the Respondent 5.5 acres, and which had been adopted as a judgment of the Sotik Principal Magistrate's Court in Case No. 13 of 2010. She also sought that leave operate as a stay. She contended the Tribunal lacked power to order a transfer of title and had entertained a claim by a person without letters of administration; an intended appeal was overtaken by the repeal of the Land Disputes Tribunal Act. The Respondent opposed, arguing failure to appeal in time, defectiveness for non-joinder of the Magistrate's Court, and abuse of process. The Respondent also raised a preliminary objection that the suit was res judicata/sub-judice. The court framed one issue: whether leave to apply for certiorari should be granted. Relying on section 6 of the Civil Procedure Act and authority discouraging multiplicity of suits, the court held that the issues were directly and substantially in issue in the still-pending Kericho ELC Case No. 60 of 2015, and stayed the application as sub-judice. Non-joinder of the Magistrate's Court was held a curable irregularity. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the application for leave to apply for certiorari should be stayed as res judicata/sub-judice

Holding

Yes - the application was stayed because similar issues were pending in Kericho ELC Case No. 60 of 2015

Reasoning

Section 6 of the Civil Procedure Act bars a court from proceeding with any suit or proceeding where the matter in issue is directly and substantially in issue in a previously instituted, still-pending suit between the same parties. Both matters concern the verdict of the Sotik Land Disputes Tribunal over KERICHO/KIPSONOI S.S 513, and ELC Case No. 60 of 2015 remains pending for hearing.

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02

Whether failure to enjoin the Magistrate's Court rendered the application defective

Holding

No - non-joinder is an irregularity curable by amendment and does not go to the substance

Reasoning

The court, relying on the Court of Appeal in the Kasamani case, held that a defect in form, title or non-joinder of parties are irregularities curable by amendment and do not go to the substance of a matter, though Odunga J's observation warns such a defect may attract costs consequences.

p. 2

Legal principles established

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  • A court must stay a suit or application where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties that is still pending (section 6, Civil Procedure Act)
  • Multiplicity of suits between the same parties over the same subject matter is to be avoided

Court orders

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  1. 1.The application is stayed as the matter is sub-judice
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules (1), (2) and (4)
  • Law Reform ActCap 26
  • Civil Procedure Actsection 6
  • Land Disputes Tribunal Actrepeal

Cases cited (4)

  • Nyanza Garage v Attorney General
    Kampala HC Civil Suit no. 450 of 1993
  • Republic v Registrar of Societies –Kenya & 2 Others Ex-parte Moses Kirima & 2 Others
    (2017) eKLR
  • Republic Ex-parte Minister for Finance & the Commissioner of Insurance as Licensing and Regulating Officers v Charles Lutta Kasamani T/A Kasamani & Co Advocates & Another
    Civil Appeal (Application) No. Nai 281 of 2005
  • Kiscoba Association (Acting through John Maina- Chairman James Ndiba, Organizing Secretary v Nairobi City County Government
    (2018) eKLR
Jurisdiction invoked
Order 53 Rules (1), (2) and (4) of the Civil Procedure Rules and the Law Reform Act, Cap 26 of the Laws of Kenya

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, "Benedeta Mabwai v William Kiplangat Rono [2019] KEELC 2839 (KLR)", Case Analysis (2019). Sotik Principal Magistrate's Court Case No. 13 of 2010 related judicial review (Chamber Summons, Order 53). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2839/eng@2019-06-25

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