Joseck Simiyu Prichani v Victor Honorary Nalianya & 4 others [2021] KEELC 970 (KLR)
The bottom line
#The Environment and Land Court in Bungoma transferred and consolidated two land disputes over the same parcels, but refused to grant a temporary injunction.
What this practically means
#Executive summary
#Key legal issues
#Preliminary objection on res judicata and sub judice
The plea was unfounded and rejected because the prayers for transfer and consolidation could not have been canvassed in the Subordinate Court, the jurisdiction to transfer suits being the preserve of the superior court.
Section 7 of the Civil Procedure Act defines res judicata as an issue already heard and finally decided, while Section 6 covers pending matters. Since only the Environment and Land Court can transfer suits from the Subordinate Court under Section 18, any such orders made in the Subordinate Court would be made out of jurisdiction and cannot ground res judicata. No evidence showed a transfer application pending in the subordinate court, defeating sub judice.
Whether the two suits should be consolidated
Yes - the suits involve the same subject matter, land parcels NO KIMILILI/KAMUKUYWA/2268 and 2269, and common parties, so consolidation was merited.
Both cases concern the same land parcels; the Elgon Religious Society of Friends is plaintiff in both; the Applicant is defendant in Bungoma ELC 124 of 2014 and has applied to be joined in Kimilili SPMC ELC 33 of 2019. Consolidation saves time and costs and avoids conflicting decisions. That the Applicant was not yet a party in one suit does not bar consolidation, which requires only common questions of law or fact.
Whether a temporary injunction could issue in the miscellaneous application
No - the prayer was declined because the Court was not seized of any suit in which an injunction could issue.
Order 40 Rule 1 of the Civil Procedure Rules permits temporary injunctions in a suit where property in dispute is in danger of being wasted. The Court was handling only Miscellaneous Application No. E006 of 2021 seeking consolidation, not either substantive suit, so no injunction could issue in that application.
Legal principles established
#- Jurisdiction to transfer a suit from the Subordinate Court to the superior Court and vice versa is the preserve of the High Court/Environment and Land Court under Section 18 of the Civil Procedure Act
- Orders made out of jurisdiction cannot sustain a plea of res judicata
- Consolidation of suits does not depend on the parties in the different suits being the same or litigating in the same capacity
- A temporary injunction cannot issue in a miscellaneous application where the Court is not seized of the suit
Court orders
#- 1.KIMILILI SPMC ELC CASE No 33 of 2019 be and is hereby transferred to this Court to be consolidated with BUNGOMA ELC CASE No 124 of 2014 for hearing and final disposal
- 2.The prayer for temporary injunction is declined
- 3.KIMILILI SPMC ELC CASE No 33 of 2019 and BUNGOMA ELC CASE No 124 of 2014 shall both be mentioned on 8th November 2021 for further directions as to their disposal
- 4.Each party shall meet their own costs
- Jurisdiction invoked
- Sections 1A, 1B, 6, 8, 17 and 18 of the Civil Procedure Act; Articles 165(6) and (7) of the Constitution; Orders 40 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseck Simiyu Prichani v Victor Honorary Nalianya & 4 others [2021] KEELC 970 (KLR)", Case Analysis (2021). Miscellaneous Application No. E006 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/970/eng@2021-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.