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ELCDismissedNot stated in the judgment (Murang'a ELCC suit)· [2019] KEELC 4610 (KLR)

Patrick Kanyoro Mathenge v Kariua Mwiriukia Farmers Cooperative Society Ltd & 4 others [2019] KEELC 4610 (KLR)

Environment and Land Court
14 February 2019
JKJ G Kemei
1,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Murang'a dismissed a land dispute as sub judice because the same fight was already before the Thika magistrates' court.

What this practically means

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Executive summary

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The Plaintiff sued five Defendants on 25 April 2018 seeking orders restraining interference with seven plots (1288, 1547, 1687/1678, 1845, 1847, 1945 and 1953) at Golf View Estate, formerly land of Kariua Mwiriukia Cooperative Society Limited; temporary injunctions against new allottees; restoration of original beacons by the 3rd Defendant; and a report from the 5th Defendant on the status of public land within the estate. Simultaneously he filed a Notice of Motion seeking equivalent injunctive and mandatory orders. The 1st Defendant filed a Preliminary Objection on three grounds: that Thika Civil Case No. 387 of 2014 (Kariua Mwiriukia Farmers Co-operative Society Limited v Patrick Kanyoro Mathenge) involving the same subject matter was pending; that the suit was sub judice and an abuse of process; and that the Attorney General had not been enjoined for the 2nd to 5th Defendants. In a Replying Affidavit, the 1st Defendant's Chairman, James Mbera Macharia, denied the Plaintiff's claim as fraudulent, asserted the Plaintiff was not a member of the society, and explained that plots had been awarded to Obadia Wainaina t/a County Maps Agencies in lieu of survey fees. Relying on Section 6 of the Civil Procedure Act, and having perused the Thika court file, J G Kemei J found the parties and subject matter identical, held the suit sub judice, and dismissed it, directing the parties to pursue their claims in the Thika suit. The non-joinder objection was left undecided as a matter of party prerogative. Costs were awarded to the 1st Respondent.

Key legal issues

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01

Sub judice under Section 6 of the Civil Procedure Act

Holding

The suit was sub judice because the same subject matter between the same parties was pending in Thika CMCC No. 387 of 2014, justifying dismissal

Reasoning

Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or those claiming under them, litigating under the same title, pending in a Kenyan court. The court perused the Thika file and found both suits involve the Plaintiff and the 1st Defendant and the same subject matter, so continuance would duplicate litigation.

p. 2
02

Non-joinder of the Attorney General

Holding

Non-joinder of the Attorney General was not a bar; it is the prerogative of parties whom to sue

Reasoning

The 1st Defendant objected that the Attorney General had not been enjoined to act for the 2nd to 5th Defendants. The court declined to determine the point, holding that choice of parties is for the litigant, and the objection was not treated as a ground of dismissal.

p. 2

Legal principles established

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  • Where a matter directly and substantially in issue is already pending in a previously instituted suit between the same parties litigating under the same title, the later suit should be dismissed to avoid multiplicity of suits and abuse of court process

Court orders

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  1. 1.The Preliminary Objection is merited and the suit is dismissed for being sub judice
  2. 2.The costs of the application shall be payable to the 1st Respondent by the Plaintiff/Applicant
  3. 3.Parties to pursue their claims in CMCC No. 387 of 2014, Thika

Authorities

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Legislation

  • Civil Procedure ActSection 6
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited in the judgment)

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, "Patrick Kanyoro Mathenge v Kariua Mwiriukia Farmers Cooperative Society Ltd & 4 others [2019] KEELC 4610 (KLR)", Case Analysis (2019). Not stated in the judgment (Murang'a ELCC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4610/eng@2019-02-14

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