Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedApplication dated 5th December, 2018 in Machakos ELC Suit (Plaint dated 15th May, 2017)· [2019] KEELC 3206 (KLR)

Wibeso Investment Limited & another v Tamarind Meadows Limited & 5 others [2019] KEELC 3206 (KLR)

Environment and Land Court
24 May 2019
4,356 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Machakos refused to pause a land dispute or merge it with a related bank case, and made the losing party pay costs.

What this practically means

#

Executive summary

#
This judgment, delivered by O.A. Angote J in Machakos on 24th May, 2019, determines an application by the 1st Defendant dated 5th December, 2018 seeking (i) a stay of further proceedings pending an intended appeal against the court's ruling of 26th October, 2018, which had declined leave to amend a Third Party Notice and to recall witnesses; and alternatively (ii) consolidation of this land-dispute suit with Nairobi HCCC No. 539 of 2012 (Kenya Commercial Bank Ltd vs. Tamarind Meadows Ltd & Others), or (iii) that both suits be heard by the same Judge consecutively. The court held that it had already finally declined the 1st Defendant's oral application for stay on 26th October, 2018 and could not revisit the same issue without sitting on its own appeal; any further application lay in the Court of Appeal. On the merits, the 1st Defendant had not shown substantial loss, being in possession of the suit land, so the status quo would not change. Relying on African Safari Club vs. Safe Rentals and Global Tours & Travels, the court exercised its discretion against a stay, noting that proceedings were at the tail-end and the intended appeal would remain alive. On consolidation, the court found that Olga Sewe J had already finally determined in Nairobi HCCC No. 539 of 2012 that there were no common questions of fact or law between the commercial claim and this land-ownership suit, and that the 1st Defendant's own affidavit in the Nairobi suit admitted the claims were distinct, estopping it from contending otherwise. The application was dismissed with costs.

Key legal issues

#
01

Whether stay of proceedings pending intended appeal could be granted

Holding

Stay refused: the court had already finally declined the oral application for stay and could not revisit it; alternatively, no substantial loss was shown since the 1st Defendant remains in possession of the suit land and the status quo is unchanged.

Reasoning

Order 42 Rule 6(2) requires substantial loss and absence of unreasonable delay. The dismissal of the oral application on 26th October 2018 was final; any further application lay in the Court of Appeal. Even on merits, the 1st Defendant is in possession, so the impugned order does not dispossess it, and any further stalling of proceedings at the tail-end impedes expeditious disposal.

02

Whether the two suits should be consolidated or heard by the same Judge

Holding

Refused: a court of concurrent jurisdiction had finally found no common questions of fact or law between the two suits, and the 1st Defendant, having opposed the Plaintiffs' joinder in the Nairobi suit on the basis that the claims were distinct, was estopped from contending otherwise.

Reasoning

Olga Sewe J. in Nairobi HCCC No. 539 of 2012 held the cause there was commercial (recovery of monies lent on a charge) with no common question of fact or law with the Plaintiffs' land-ownership claim. The 1st Defendant's own affidavit in that suit admitted the claims were distinct. Consolidation at the tail-end of the hearing would also delay justice contrary to Article 159(2)(b).

p. 5

Legal principles established

#
  • A court cannot revisit an issue of stay of proceedings it has already finally determined, lest it be accused of sitting on its own Appeal.
  • In an application for stay, the court treats decree holder and judgment debtor equally by balancing relative hardships and maintaining the status quo obtaining at the time of the decision appealed against.
  • Stay of proceedings even where the order appealed is negative is a matter of judicial discretion to be exercised in the interest of justice, weighing pros and cons.
  • A party who has deponed that two claims are unrelated and who opposed joinder on that basis is estopped from later contending the causes of action are related.

Court orders

#
  1. 1.The 1st Defendant's/Applicant's Application dated 5th December, 2018 is dismissed
  2. 2.The Application is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 6(5)
  • Civil Procedure RulesOrder 40 Rule 10
  • Constitution of Kenya, 2010Article 159(2)(b)

Cases cited (4)

  • Co-operative Bank of Kenya Limited vs. Patrick Kangethe Njuguna & 5 Others
    (2017) eKLR
  • African Safari Club vs. Safe Rentals Limited
    Nairobi Civil Appeal No. 53 of 2010
  • Global Tours & Travels Limited - Winding up Cause No. 43 of 2000
  • Kenya Commercial Bank Ltd vs. Tamarind Meadows Ltd, Tamarind Properties Ltd, Kennedy Otieno Ogwaro, Joseph Mungai and David Kitwai Ngonda
    Nairobi HCCC No. 539 of 2012 (Ruling of 17th December 2014, Olga Sewe J.)
Jurisdiction invoked
Civil Procedure Rules, Order 42 Rule 6(2) and Order 40 Rule 10; Article 159(2)(b) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wibeso Investment Limited & another v Tamarind Meadows Limited & 5 others [2019] KEELC 3206 (KLR)", Case Analysis (2019). Application dated 5th December, 2018 in Machakos ELC Suit (Plaint dated 15th May, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3206/eng@2019-05-24

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