David Maina Waigwa v Elishiba Mweru Waithaka [2020] KEELC 149 (KLR)
The bottom line
#A Kenyan land court threw out a family's property dispute because it sued in the wrong forum, over issues already decided, while a similar case was still pending.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over the suit
The court found that the suit property was not land in dispute and therefore the court lacked jurisdiction to hear and determine the suit
The court examined the pleadings and found that what was in dispute was the machinery, buildings and developments in the suit property and not the land itself. Since the ELC is a creature of statute with limited jurisdiction under section 13 of the Environment and Land Court Act, and since the subject matter fell outside that jurisdiction, the court was bound to strike out the suit on that ground alone.
Whether the suit was subjudice and res judicata
The court found the suit was subjudice as a similar suit was pending before the court at Nakuru, and res judicata as the issues had been dealt with in Nyahururu CMCC No 31 of 2018
The court was told that Nakuru ELC Petition No 9 of 2019 was pending between the same parties over the same subject matter. The court also found that the issues raised in the claim were the same as those dealt with in Nyahururu CMCC No 31 of 2018, which was decided on the merits. The court took the view that a striking out was appropriate where the suit was res judicata and an abuse of process.
Whether the suit was an abuse of the process of the court
The court found that the suit was an abuse of the process of the court
The court considered the affidavit evidence and found that the plaintiffs had filed a suit over the same issues already pending elsewhere, and that they had not diligently pursued the suit. The court also considered that the affidavits sworn by the 2nd and 3rd defendants, which attacked the plaintiffs' cause of action, remained uncontroverted. The court therefore found the suit to be an abuse of process justifying striking out.
Legal principles established
#- The Environment and Land Court lacks jurisdiction over a suit where the subject property is not land within the meaning of section 2 of the Environment and Land Court Act
- A suit pending between the same parties over the same subject matter before a court of concurrent jurisdiction is subjudice
- Machinery, buildings and developments fixed to land cease to be movable and become part and parcel of the land
- For a suit to be res judicata, the former suit must have been between the same parties, over the same subject matter, and decided on the merits by a court of competent jurisdiction
Court orders
#- 1.The suit is hereby struck out with no orders as to costs.
- Jurisdiction invoked
- Articles 162(2)(b) and 165(5)(b) of the Constitution; Sections 13(1), 13(7), 18 and 150 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Maina Waigwa v Elishiba Mweru Waithaka [2020] KEELC 149 (KLR)", Case Analysis (2021). ELC Case No. 22 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/149/eng@2020-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.