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ELCDismissedMiscellaneous Application No. 3 of 2020· [2020] KEELC 926 (KLR)

Musa Said v Miraji Mustafa & 4 others [2020] KEELC 926 (KLR)

Environment and Land Court
26 October 2020
NMN.A. Matheka
1,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega struck out an application because the same land dispute was already before other courts between the same parties.

What this practically means

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Executive summary

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The applicant, Miraji Mustafa and others, filed a notice of motion dated 18th May 2020 seeking orders that the Kakamega Kadhi's Court Miscellaneous Application No. 3 of 2020 be withdrawn to the Environment and Land Court for dismissal for want of jurisdiction, that it be struck out, and that proceedings in it be stayed. The applicant argued that the Kadhi's Court lacked jurisdiction over disputes concerning cautions on registered land, that Section 101 of the Land Registration Act vests exclusive jurisdiction over cautions in the Environment and Land Court, and that the Kadhi's Court's mandate under Section 5 of the Kadhi's Court Act and Article 170(5) of the Constitution is limited to Muslim personal law. The respondents opposed, arguing the application was unmeritorious, sub judice, and that alternative remedies existed before the Kadhi's Court and the Land Registrar under Section 73(2) of the Land Registration Act. The court first addressed the preliminary point of law on sub judice raised by the respondents. Relying on Sections 6 and 7 of the Civil Procedure Act, it found that the matter was directly and substantially in issue in Kakamega High Court Civil Appeal No. 69 of 2019 and Civil Appeal No. 80 of 2019 between the same parties and concerning the same subject matter, appeals that had been allowed by Justice W. Musyoka on 26th February 2020. The court upheld the preliminary issue and struck out the application without reaching the merits, including the jurisdictional challenge to the Kadhi's Court, with costs to the 1st and 2nd respondents.

Key legal issues

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01

Whether the application was barred by the doctrine of sub judice and/or res judicata

Holding

The application was barred and was struck out on that preliminary point

Reasoning

The court invoked Sections 6 and 7 of the Civil Procedure Act, which bar a court from proceeding with a matter where the issue is directly and substantially in issue in previously instituted proceedings between the same parties. The applicant himself acknowledged that the cautions were connected to appeals already allowed by Justice W. Musyoka in Kakamega High Court Civil Appeals No. 69 and 80 of 2019, both between the same parties and concerning the same subject matter. The court therefore upheld the respondents' preliminary point without reaching the merits, including the jurisdictional objections to the Kadhi's Court.

p. 2

Legal principles established

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  • A court may decline to determine an application on the merits where the matter in issue is directly and substantially in issue in previously instituted proceedings between the same parties (sub judice/res judicata under Sections 6 and 7 of the Civil Procedure Act)

Court orders

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  1. 1.The preliminary issue of law on sub judice/res judicata is upheld
  2. 2.This application is struck out
  3. 3.Costs of the application are awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Land Registration ActSection 101; Section 73(2)
  • Kadhi's Court ActSection 5
  • Constitution of KenyaArticle 170(5); Article 165(6) and (7)
  • Civil Procedure ActSection 6; Section 7; Section 12
  • Environment and Land Court ActSection 13(5) and (6)
On appeal from
Kakamega Kadhi's Court
Miscellaneous Application No. 3 of 2020
Jurisdiction invoked
Article 165(6) and (7) of the Constitution as read with Section 13(5) and (6) of the Environment and Land Court Act; supervisory jurisdiction

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, "Musa Said v Miraji Mustafa & 4 others [2020] KEELC 926 (KLR)", Case Analysis (2020). Miscellaneous Application No. 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/926/eng@2020-10-26

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