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ELCPartially AllowedApplication dated 16th March 2021 (Environment and Land Court suit at Mombasa)· [2021] KEELC 1384 (KLR)

Judith Juma Nyagweth(Suing in her capacity as the Administrator of the Estate of John Omondi Tindo) v Bakari Tembo & another [2021] KEELC 1384 (KLR)

Environment and Land Court
26 October 2021
924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court paused an eviction case because the same land dispute was already before the Court of Appeal.

What this practically means

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Executive summary

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The applicants, defendants in an eviction suit filed by Jane Juma Nyangi as administratrix of the estate of the late John Omondi Tindo, registered owner of Plot No. MN/II/3166, applied by a notice of motion dated 16th March 2021 under Sections 6, 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules for a stay of the suit pending determination of Mombasa Court of Appeal Civil Appeal No. 126 of 2019. They relied on a ruling of 7th February 2020 by a bench of D. K. Musinga, Gatembu Kairu and A. K. Murgor, JA in Civil Application No. 73 of 2019, in which the Court of Appeal issued an injunction restraining eviction of the applicants and those claiming under them from the suit properties, contending the parties were litigating over the same subject matter under the same title. The respondent opposed, stating she was a stranger to both the Court of Appeal application and appeal, and that the suit land was purchased by her late husband from Salemohamed Ramzan Noormohamed in 1987 and forms part of his estate. Examining the annexures, the court found the suit property, Plot No. 3166/II/MN, is a subdivision of Plot No. 1483/II/MN (originally Plot No. 344/II/MN), which is subject to the Court of Appeal injunction. Holding it fair and just to stay the matter, the court granted prayer 2, staying the suit pending determination of the appeal, with costs in the cause.

Key legal issues

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01

Whether the suit property falls within the subject matter of the pending Court of Appeal appeal and its injunctive orders

Holding

The court found the suit property Plot No. 3166/II/MN is a subdivision of Plot No. 1483/II/MN (originally Plot No. 344/II/MN), which is covered by the Court of Appeal injunction

Reasoning

The court examined the annexures filed on 5th October 2021 and traced the subdivision history of the plots affected by the Court of Appeal ruling of 7th February 2020 in Civil Application No. 73 of 2019. It found the injunction protecting the applicants and those claiming under them extended to the subdivision comprising the current suit property, thus engaging Section 6 of the Civil Procedure Act.

p. 2
02

Whether the suit should be stayed under Section 6 of the Civil Procedure Act

Holding

Yes; the application was held merited and prayer 2 granted

Reasoning

Having found that the suit property forms part of land subject to a pending appeal and existing injunctive orders of the Court of Appeal, the court held that proceeding with the suit would offend Section 6 and that it was fair and just to stay the matter pending determination of Civil Appeal No. 126 of 2019 (Mombasa).

p. 2

Legal principles established

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  • Section 6 of the Civil Procedure Act bars a court from proceeding with a suit where the same matter is directly and substantially in issue in a previously instituted suit or pending appeal between the same parties under the same title
  • Where an existing injunction of a superior court covers land affected by a lower court suit, it is fair and just to stay the suit

Court orders

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  1. 1.Stay of the suit pending hearing and determination of Mombasa Court of Appeal Civil Appeal No. 126 of 2019 (prayer 2 granted)
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 6
  • Civil Procedure Act Cap 21Section 1A
  • Civil Procedure Act Cap 21Section 1B
  • Civil Procedure Act Cap 21Section 3A
  • Civil Procedure Act Cap 21Section 63(e)
  • Civil Procedure RulesOrder 51
  • Constitution of Kenya 2010Article 50
Jurisdiction invoked
Sections 6, 1A, 1B, 3A and 63(e) of the Civil Procedure Act Cap 21 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, "Judith Juma Nyagweth(Suing in her capacity as the Administrator of the Estate of John Omondi Tindo) v Bakari Tembo & another [2021] KEELC 1384 (KLR)", Case Analysis (2021). Application dated 16th March 2021 (Environment and Land Court suit at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1384/eng@2021-10-26

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