Macdonald Barawa Mwangala v Elias Kiti Tena [2020] KEELC 1885 (KLR)
The bottom line
#A Kenyan court cancelled ex-parte injunctions over land because the applicant hid an earlier lawsuit involving the same property from the magistrate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Kilifi suit and this suit involve the same parties and cause of action
The court held they do: the subject property, matters in issue and connected parties are the same, the defendant in the Kilifi case being the tenant of the defendant herein under a 20-year lease.
The court noted the plaintiff sued the defendant here for trespass over Plot Kilifi/Ngerenyi/906, then sued the defendant's tenant in Kilifi seeking similar injunctions over the same property. A lease agreement dated 28th May 2015 established the landlord-tenant relationship, and any order in this suit would bind the tenant. Non-disclosure of this suit in the Kilifi matter was therefore material.
Whether the ex-parte orders in the Kilifi suit should be stayed and discharged
Yes - had the Kilifi court known of this earlier suit, it would not have granted the injunctive orders; the application was allowed in terms of prayers 'c', 'g' and 'h'.
The orders of 13th November 2017 were granted ex-parte after this suit had been filed, yet the plaintiff did not disclose this suit. The injunctions related to the same contested property. The court was satisfied there was merit in the application and allowed the prayers seeking stay and discharge of the Kilifi orders and transfer of that suit.
Legal principles established
#- Where two suits involve the same subject property and parties whose interests are connected, a court ought not to allow parallel proceedings; an order in one suit would bind the related party
- Ex-parte injunctive orders obtained without disclosure of a prior pending suit over the same property ought to be discharged
Court orders
#- 1.The Defendant's Notice of Motion dated 21st March 2018 allowed in terms of prayers 'c', 'g' and 'h' thereof
- 2.Prayers 'c', 'g' and 'h' comprisestaying and discharging the orders issued in Kilifi SPMCC No. 304 of 2017 and transferring that suit from the Senior Principal Magistrates Court at Kilifi to this Court
- 3.Costs of the application to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction over land disputes; supervisory power to call for and stay/discharge proceedings in a subordinate court in relation to the same subject matter (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macdonald Barawa Mwangala v Elias Kiti Tena [2020] KEELC 1885 (KLR)", Case Analysis (2020). Not stated in the excerpt ( suit at Malindi; related suit Kilifi SPMCC No. 304 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1885/eng@2020-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.