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ELCOtherNakuru ELC Case (Notice of Motion dated 22nd October 2019)· [2021] KEELC 2038 (KLR)

Lawrence Maina Mwangi v Prairie Co-operative Society Ltd & 6 others [2021] KEELC 2038 (KLR)

Environment and Land Court
16 September 2021
DOD. O. Ohungo
1,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a second land dispute over the same property because an earlier case on that land was still ongoing.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo, J of the Environment and Land Court, delivered on 16th September 2021 at Kakamega, determined the plaintiff's Notice of Motion dated 22nd October 2019 seeking a temporary injunction restraining the defendants from surveying, re-surveying, selling, transferring, leasing, fencing, demolishing structures or otherwise dealing with Land Reference Number 22910 pending the hearing of his suit. The plaintiff claimed that he was the registered owner of the suit property, tracing his title from an allotment to Philip Kibet Tonui in 1995, through subsequent sales, and that the defendants had cancelled Survey Plan FR No. 314/7 and prepared a new survey plan without the owners' consent. The 1st defendant opposed the application, asserting ownership of the property as part of its parcels 4730/45 and 4730/42 and contending that there was a pending suit, Nakuru ELC No. 127 of 2014, over the same property, rendering this suit sub judice. The court dealt with the sub judice question first, finding that the ownership of LR No. 22910 was directly and substantially in issue in the earlier partly-heard suit, in which the plaintiff herein had been joined as an interested party and under whose plaintiffs he claimed title. Holding that the suit offended Section 6 of the Civil Procedure Act, the court stayed the suit pending hearing and determination of Nakuru ELC No. 127 of 2014, with costs in the cause.

Key legal issues

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01

Sub judice under Section 6 of the Civil Procedure Act

Holding

The suit and the motion were stayed because the ownership of LR No. 22910 was directly and substantially in issue in the earlier, partly-heard Nakuru ELC No. 127 of 2014 between parties under whom the plaintiff claimed.

Reasoning

The court found an earlier suit, Nakuru ELC No. 127 of 2014, partly heard before the same court, in which the plaintiffs sought a declaration that LR No. 22910 belongs to them against the same 1st defendant. The plaintiff herein had been joined as an interested party in that suit on 5th December 2019 and, in any event, litigated under the same title since his title traced to those plaintiffs. The court therefore held it lacked the ability to proceed with the trial of the later suit.

p. 2

Legal principles established

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  • Where ownership of property is directly and substantially in issue in a previously instituted suit, a later suit over the same property between the same parties or those litigating under the same title is barred under Section 6 of the Civil Procedure Act.
  • A person whose title traces its roots to parties in a pending suit litigates under the same title as those parties within the meaning of Section 6 of the Civil Procedure Act.

Court orders

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  1. 1.This suit is stayed pending hearing and determination of Nakuru ELC No. 127 of 2014
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 6
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court read with Section 6 of the Civil Procedure Act (sub judice doctrine)

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, "Lawrence Maina Mwangi v Prairie Co-operative Society Ltd & 6 others [2021] KEELC 2038 (KLR)", Case Analysis (2021). Nakuru ELC Case (Notice of Motion dated 22nd October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2038/eng@2021-09-16

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