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ELCAllowedKehancha ELC Case (instant suit); application by Notice of Motion dated 9th September 2019· [2020] KEELC 3832 (KLR)

Makabwa Mwita & 15 others v Joseph Marwa Maswi [2020] KEELC 3832 (KLR)

Environment and Land Court
28 January 2020
GOG.M.A. Ongondo
1,185 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that related land disputes in different courts can be transferred and heard together in one case.

What this practically means

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Executive summary

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By a Notice of Motion dated 9th September 2019 under section 18 of the Civil Procedure Act, the plaintiffs in the instant ELC suit sought the withdrawal of Kehancha PMCC (ELC) No. 6 of 2015 (Joseph Maroa Maswi v Magabe Mwita Wambura and 5 others) from the magistrates' court and its transfer to the Environment and Land Court for consolidation with the instant suit. The applicants' claim, brought by originating summons under Order 37 Rule 7, is for adverse possession of land parcel Nyabasi/Bomerani/448 registered in the name of the defendant, who is the plaintiff in the magistrate's suit. The defendant opposed, deposing that he is the registered proprietor, that the applicants trespassed in 2015 prompting his suit for injunction for trespass, and that the application was brought in bad faith to delay the dispute. Respondent's counsel relied on the sub judice doctrine, citing section 6 of the Civil Procedure Act and the Thibu Mini Hydro decision. The court, per G.M.A. Ongondo J, held that the sub judice principle did not apply; that both suits concern the same land and overlapping parties and neither had been heard; that even a part-heard case may be consolidated; and that adverse possession claims belong to the ELC under Article 162(2)(b) and section 13(1) of the ELC Act. Applying the overriding objective and Article 159(2)(b), the court allowed the application and ordered the magistrate's suit withdrawn and transferred for consolidation, with mention on 3rd March 2020.

Key legal issues

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01

Consolidation and transfer of a subordinate court suit to the Environment and Land Court

Holding

The application mounted under section 18 of the Civil Procedure Act was merited; the claim for adverse possession is properly before the ELC and consolidation serves the overriding objective and Article 159(2)(b) that justice shall not be delayed.

Reasoning

Both suits concern the same land, Nyabasi/Bomerani/448, and overlapping parties: the plaintiff in the magistrate's suit is the defendant here, and the defendants there are plaintiffs here. The applicants' claim is for adverse possession, a matter for the ELC under Article 162(2)(b) and section 13(1) of the ELC Act. The sub judice doctrine does not bar consolidation since both suits are yet to be heard, and even part-heard cases may be consolidated.

p. 3
02

Applicability of the sub judice doctrine

Holding

The sub judice principle under section 6 of the Civil Procedure Act does not apply to defeat the application.

Reasoning

Counsel for the respondent relied on section 6 of the Civil Procedure Act and the Thibu Mini Hydro case on sub judice. The court defined sub judice from Black's Law Dictionary but held the principle inapplicable in the circumstances of the consolidation application, since the order sought was transfer and consolidation rather than parallel proceedings.

p. 2

Legal principles established

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  • Even a part heard case can still be consolidated with a fresh case; parties who had testified can be recalled or the case can continue from the evidence earlier recorded

Court orders

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  1. 1.Kehancha PMCC (ELC) No. 6 of 2015 (Joseph Maroa Maswi vs Magabe Mwita Wambura and 5 others) be withdrawn and transferred forthwith to the Environment and Land Court for consolidation with the instant suit
  2. 2.Mention to confirm compliance and for directions on 3rd March 2020

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 18
  • Civil Procedure Act (Cap 21)section 6
  • Civil Procedure Act (Cap 21)sections 5 and 11
  • Civil Procedure Act (Cap 21)sections 1A and 3A
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Rules, 2010Order 3 Rule 1
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33 (a) and (b)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Environment and Land Court Act, 2015section 13(1)
  • Environment and Land Court Act, 2015section 26(4)
  • Environment and Land Court Act, 2015section 3

Cases cited (7)

  • Benson G. Mutahi vs Raphael Gichovi Munene Kabutu and 4 others
    (2014) eKLR
  • Stumberg and another vs Potgeiter
    (1970) 323
  • Gulam Mariam Noordin vs Julius Charo Karisa
    (2015) eKLR
  • Thibu Mini Hydro Company Limited vs Josepht Karu Ndwiga
    (2013) eKLR
  • Republic vs Karisa Chengo and 2 others
    (2017) eKLR
  • Salim vs Boyd
    (1971) EA 550
  • Ngumbao vs Mwatate and 2 others
    (1986) KLR 549
Jurisdiction invoked
Section 18 of the Civil Procedure Act; Article 162(2)(b) of the Constitution of Kenya, 2010; sections 13(1) and 26(4) of the Environment and Land Court Act, 2015

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, "Makabwa Mwita & 15 others v Joseph Marwa Maswi [2020] KEELC 3832 (KLR)", Case Analysis (2020). Kehancha ELC Case (instant suit); application by Notice of Motion dated 9th September 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3832/eng@2020-01-28

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