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ELCDismissed· [2020] KEELC 942 (KLR)

Stephen Kungutia & 2 others v Severina Nchulubi [2020] KEELC 942 (KLR)

Environment and Land Court
21 October 2020
LMLucy N. Mbugua
614 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 Meru dismissed a repeat application to stop eviction, confirming that Kenyan courts punish duplicated filings and treat concluded land disputes as final.

What this practically means

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Executive summary

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By a notice of motion dated 19.02.2020, the applicant, the 3rd appellant in the underlying litigation, sought a stay of execution of a judgment dated 7.6.2012 and decree dated 2.7.2010 and an order stopping his eviction from parcel No. 1186 Kiguchwa Adjudication Section, now registered as Tigania East/Kiguchwa/1186. He contended that he was the sole registered owner of that parcel, that it was independent clan/family land never excised from parcel 960, that it had been wrongly and maliciously dragged into the suit without his knowledge or consent, and that he had been served with an eviction notice dated 3.8.2019. The respondent, in a detailed replying affidavit, traced the litigation history: she had sued the appellants in Maua CMCC No. 85 of 1997 claiming ownership of parcel 960, from which parcels 762 and 1186 had been subdivided; the appellants lost in the High Court (Meru Civil Appeal No. 104 of 1999) and again in the Court of Appeal (Nyeri C.A No. 221 of 2010). The court found that the applicant had filed a similar application on 16.01.2020 which, not having been served, was dismissed on 10.02.2020 with the file closed, and that filing another similar application was an abuse of the process of the court. The court further held that the litigation over parcel 1186 had been conclusively captured in decisions of various courts, including the Court of Appeal, and could not be revisited through this application. The application dated 19.02.2020 was dismissed as incompetent and unmerited, with costs to the respondent.

Key legal issues

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Whether the repeated application for stay of execution and stoppage of eviction was competent

Holding

The application was incompetent and unmerited and was dismissed with costs

Reasoning

The court noted that the applicant had on 16.01.2020 filed another application to prevent his eviction from parcel 1186. That application came up for inter-partes hearing on 10.02.2020, when the applicant admitted it had not been served, and it was dismissed with the file closed. Filing another similar application was therefore an abuse of process. Further, the litigation history over parcel 1186 had been conclusively determined through Maua CMCC No. 85 of 1997, Meru High Court Civil Appeal No. 104 of 1999 and Nyeri Court of Appeal Civil Appeal No. 221 of 2010, all lost by the appellants.

p. 1

Legal principles established

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  • Filing a fresh application substantially similar to one already dismissed, without more, constitutes an abuse of the process of the court
  • Issues of ownership of land conclusively determined by courts, including the Court of Appeal, cannot be revisited through an interlocutory application

Court orders

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  1. 1.The application dated 19.02.2020 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court on an interlocutory notice of motion (stay of execution); no specific constitutional or statutory provision invoked 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, "Stephen Kungutia & 2 others v Severina Nchulubi [2020] KEELC 942 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/942/eng@2020-10-21

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