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ELCPartially AllowedChuka ELC Case No. 08 of 2019· [2020] KEELC 3562 (KLR)

Josphat Kinyua Kajui v Stephen Kanyaru M’impwi [2020] KEELC 3562 (KLR)

Environment and Land Court
19 February 2020
PNP. M. Njoroge
2,234 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling (delivered 9th December 2019 and perfected with further directions on 19th February 2020) by P. M. Njoroge, J, of the Environment and Land Court at Chuka in Chuka ELC Case No. 08 of 2019, an originating summons by the plaintiff claiming title to land parcel L.R. No. Tharaka/Marimanti/761 by adverse possession under section 37 of the Limitation of Actions Act. The defendant applied under Section 6 of the Civil Procedure Act for stay of proceedings pending determination of Marimanti PM ELC No. 21 of 2018, an earlier suit between the same parties over the same parcel in which the defendant had obtained temporary injunction orders. The defendant, through his advocate Cicilio Murango Mwenda, argued that the later suit was an afterthought amounting to parallel litigation. The plaintiff, through Gatari Ringera & Company, opposed the application, contending that adverse possession claims lie exclusively before the ELC, which could not divest itself of that statutory jurisdiction in favour of a magistrate's court. The court, without delving into the merits, found that the issues could be handled more exhaustively in the lower court, noted that the plaintiff's appeal against the interim injunction orders (Chuka ELC Appeal No. 1 of 2019) had been dismissed on 21st November 2019, and held that judicial practice and public policy do not permit parallel proceedings on the same subject matter. The application was allowed in terms of prayer 2: proceedings in this suit were stayed pending hearing and determination of the Marimanti suit, which was to be heard and determined without delay, with costs in the cause. On 19th February 2020 the file was marked closed pending determination of the Marimanti suit.

Key legal issues

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01

Whether Section 6 of the Civil Procedure Act applies to warrant stay of this adverse possession suit pending Marimanti PM ELC 21 of 2018

Holding

The application was allowed; proceedings in this suit stayed pending determination of the Marimanti suit filed earlier between the same parties over the same parcel of land

Reasoning

The court noted the same parties and the same subject matter (land parcel L.R. No. Tharaka/Marimanti/761) were in issue in both the earlier Marimanti suit and this adverse possession suit. It declined to go into the merits and held that issues could be handled more exhaustively in the lower court. The plaintiff's conduct of filing an appeal against interim orders and then a fresh suit amounted to parallel proceedings disfavoured by judicial practice and public policy, and the overriding objective favoured staying the later suit.

p. 4
02

Whether the ELC's exclusive jurisdiction under section 37 of the Limitation of Actions Act barred a stay

Holding

Rejected implicitly; the stay was nonetheless granted

Reasoning

The plaintiff argued that adverse possession claims are statutorily vested exclusively in the ELC, which could not divest itself of jurisdiction in favour of a magistrate's court. The court did not expressly address this objection but stayed the suit, directing that the Marimanti suit be heard and determined without delay and closing this file pending its determination.

p. 4

Legal principles established

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  • Section 6 of the Civil Procedure Act mandates stay of a later suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties
  • A party cannot be allowed to canvass the same issues in separate, parallel suits

Court orders

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  1. 1.Stay of proceedings in Chuka ELC Case No. 08 of 2019 pending hearing and determination of Marimanti PM ELC 21 of 2018 (allowed in terms of prayer 2)
  2. 2.Direction that Marimanti PM ELC 21 of 2018 be heard and determined without delay
  3. 3.Costs in the cause
  4. 4.Parties to attend court on 19th February 2020 to report on the status of Marimanti PM ELC 21 of 2018
  5. 5.On 19th February 2020: file to be marked closed pending hearing and determination of Marimanti ELC 21 of 2018

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A and 6
  • Civil Procedure RulesOrder 51
  • Limitation of Actions ActSection 37
Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A and 6 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Josphat Kinyua Kajui v Stephen Kanyaru M’impwi [2020] KEELC 3562 (KLR)", Case Analysis (2020). Chuka ELC Case No. 08 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3562/eng@2020-02-19

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