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ELCPartially AllowedMiscellaneous Application No. E006 of 2021· [2021] KEELC 970 (KLR)

Joseck Simiyu Prichani v Victor Honorary Nalianya & 4 others [2021] KEELC 970 (KLR)

Environment and Land Court
2 November 2021
2,703 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 Bungoma transferred and consolidated two land disputes over the same parcels, but refused to grant a temporary injunction.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (Boaz N. Olao, J) delivered on 2nd November 2021 in Miscellaneous Application No. E006 of 2021. The Applicant, Joseck Simiyu Prichani, sought orders to withdraw and transfer Kimilili SPMC ELC Case No. 33 of 2019 to Bungoma ELC Court and to consolidate it with Bungoma ELC Case No. 124 of 2014, both concerning land parcels NO KIMILILI/KAMUKUYWA/2268 and 2269, together with a temporary injunction restraining interference with the parcels. The 3rd, 4th and 5th Respondents opposed through a Preliminary Objection alleging the application was defective, res judicata and sub judice, and that Kimilili Court was functus officio as the matter was the subject of ELC Appeal No. 3 of 2021. The Court rejected the Preliminary Objection, holding that the prayers for transfer and consolidation could not have been canvassed in the Subordinate Court since only the High Court and, since 2011, the Environment and Land Court have jurisdiction under Section 18 of the Civil Procedure Act to transfer suits; orders made out of jurisdiction cannot ground res judicata. Finding common questions of fact and law and overlapping parties in the two suits, the Court ordered the Kimilili case transferred to be consolidated with the Bungoma case for hearing and final disposal, with further directions on 8th November 2021. The temporary injunction prayer was declined because the Court was seized only of a miscellaneous application, not a suit. Each party was ordered to meet its own costs.

Key legal issues

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01

Preliminary objection on res judicata and sub judice

Holding

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.

Reasoning

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.

p. 3
02

Whether the two suits should be consolidated

Holding

Yes - the suits involve the same subject matter, land parcels NO KIMILILI/KAMUKUYWA/2268 and 2269, and common parties, so consolidation was merited.

Reasoning

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.

p. 4
03

Whether a temporary injunction could issue in the miscellaneous application

Holding

No - the prayer was declined because the Court was not seized of any suit in which an injunction could issue.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The prayer for temporary injunction is declined
  3. 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. 4.Each party shall meet their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 6, 7, 8, 17 and 18
  • Constitution of KenyaArticles 165(6) and (7)
  • Civil Procedure RulesOrders 40 and 51; Order 11 Rule 3(h); Order 40 Rule 1

Cases cited (4)

  • MUKISA BISCUIT MANUFACTURING CO. LTD .V. WEST END DISTRIBUTORS LTD
    1969 EA 699
  • STUMBERG AND ANOTHER .V. POTGEITER
    1970 EA 323
  • NGUMBAO .V. MWATATE AND OTHERS
    1988 KLR 549
  • KIMANI WAWERU & 28 OTHERS .V. LAW SOCIETY OF KENYA & 12 OTHERS
    2014 eKLR
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

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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, "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.