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ELCPartially AllowedELC Case (Ruiru/Kiu Block 15/105 suit), Thika – Notice of Motion dated 14th January 2020· [2020] KEELC 431 (KLR)

Jane Ajwang Nyangasi & another (suing as the Legal Representatives of the Estate of Edward Nyadimo Nginja) v Wycliffe Otieno & another [2020] KEELC 431 (KLR)

Environment and Land Court
19 November 2020
2,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court stayed a land suit because the same dispute was already before the Thika Magistrates' Court — file first, and your case goes first.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (L. Gacheru J) on a Notice of Motion dated 14th January 2020 by the Defendants/Applicants in a first-instance land suit concerning Ruiru/Kiu Block 15/105. The Applicants sought to set aside ex parte hearing orders of 27th November 2019, leave to amend their Defence to include a Counter Claim, a hearing de novo, and a stay of the suit pending determination of CMCC No. 891 of 2015 (Thika) between the same parties. The 1st Applicant explained his non-attendance as arising from his UN work obligations in Pretoria, South Africa. The Plaintiff/Respondent opposed, arguing the application was belated, prejudicial, and an attempt to re-litigate a preliminary objection dismissed on 9th April 2018. The Court framed two issues: sub judice and entitlement to the orders sought. It applied Section 6 of the Civil Procedure Act, holding that the earlier Thika suit involved the same parties, the same property, and the same core question of whether the sale was valid for lack of spousal consent; the property was valued at roughly Kshs. 4,000,000, within the subordinate court's pecuniary jurisdiction, so the first-filed suit prevailed. The Court found the instant suit sub judice and stayed it and all further proceedings pending the hearing and determination of CMCC No. 891 of 2015. It declined to rule on the setting aside, amendment, Counter Claim and de novo prayers, holding they go to the merits and risk conflicting orders, while noting a sub judice stay does not bar interlocutory applications. Costs of the application were granted. The ruling was delivered virtually under COVID-19 directions.

Key legal issues

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01

Whether the suit is sub judice

Holding

The suit is sub judice because CMCC No. 891 of 2015 (Thika) between the same parties over the same suit property (Ruiru/Kiu Block 15/105) and the validity of the sale for lack of spousal consent was filed first and the subordinate court has pecuniary jurisdiction over property valued at roughly Kshs. 4,000,000.

Reasoning

The Court applied Section 6 of the Civil Procedure Act and case law setting out the conditions for sub judice: same matter directly and substantially in issue, same parties litigating under the same title, and a previously instituted suit pending in a competent court. Both suits concern the same property and the validity of the sale agreement for lack of spousal consent. The earlier Thika suit was competent, so the instant suit had to be stayed.

p. 3
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Whether the Defendants/Applicants were entitled to setting aside of the ex parte orders of 27th November 2019, leave to amend the Defence and Counter Claim, and hearing de novo

Holding

These prayers were not granted at this stage because they go to the merits of the case and determining them while a similar matter is being adjudicated elsewhere risks conflicting orders.

Reasoning

The Court acknowledged that a sub judice stay does not bar interlocutory applications, but found this application goes to the merits of the case. It would be futile to rule on setting aside proceedings and amending the defence while a court of competent jurisdiction adjudicates the same dispute. The prayers were accordingly refused at this juncture.

p. 3

Legal principles established

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  • Where a matter in issue is directly and substantially in issue in a previously instituted suit between the same parties in a court of competent jurisdiction, the later suit is sub judice and must be stayed under Section 6 of the Civil Procedure Act.
  • A stay of a suit on the sub judice principle is no bar to the hearing and determination of interlocutory applications in the stayed suit.

Court orders

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  1. 1.That there be stay of this suit and/or further proceedings pending the hearing and determination of the Civil Case Number 891 of 2015 in the Chief Magistrates Court in Thika involving the same parties and subject matter.
  2. 2.The Stay involves the determination of the prayers sought by the Defendants/Applicants in their Application dated 14th January 2020.
  3. 3.Costs of the application allowed to the Defendants/Applicants (prayer No. 7 granted)

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Republic vs Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others
    [2017] eKLR
  • Nyanza Garage vs. Attorney General
    Kampala High Court Civil Suit No. 450 of 1993
  • Barclays Bank Of Kenya Ltd vs. Elizabeth Agidza & 2 Others
    [2012] eKLR
  • B.M. vs S.M.M
    [2012] eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act (sub judice) and inherent civil procedure jurisdiction; matter is an interlocutory Notice of Motion in a first-instance 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, "Jane Ajwang Nyangasi & another (suing as the Legal Representatives of the Estate of Edward Nyadimo Nginja) v Wycliffe Otieno & another [2020] KEELC 431 (KLR)", Case Analysis (2020). ELC Case (Ruiru/Kiu Block 15/105 suit), Thika – Notice of Motion dated 14th January 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/431/eng@2020-11-19

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