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ELCDismissedNotice of Motion dated 31/10/2019 in Kilgoris ELC No. 59 of 2018· [2021] KEELC 2189 (KLR)

Talengo Nkoliai & another (suing as the legal rep of the estate of Letuk Ole Nkoliai) v Samuel Taiswa Ololparaki & 4 others [2021] KEELC 2189 (KLR)

Environment and Land Court
27 July 2021
MKMohamed N. Kullow
1,408 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 refused to pause a land case just because a related succession appeal was pending, ruling that different issues cannot halt each other.

What this practically means

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Executive summary

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This was a Notice of Motion dated 31/10/2019 by Taleng'o Nkoliai under Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, seeking a stay of proceedings in Kilgoris Magistrate's Court ELC No. 59 of 2018 pending the hearing and determination of Nyeri Civil Appeal No. 200 of 2019. The applicant contended that the trial court did not hear him on an application dated 26/8/2019, that the 1st to 4th defendants had secretly commenced succession proceedings without involving all family members, and that a stay was needed to avoid two parallel decisions by courts. The respondent, Michael Oloinyeiye Paraki, opposed, contending that the applicant was engaged in delaying tactics, that the stay should have been sought at the Narok High Court, and that the succession matters were outside the jurisdiction of the Environment and Land Court. The sole issue framed by the court was whether the proceedings should be stayed pending the Nyeri appeal. Applying Section 6 of the Civil Procedure Act and the doctrine of res sub-judice, the court compared the parties in ELC No. 59 of 2018, Succession Cause No. 9 of 2018 and ELC Appeal No. 24 of 2019, finding the parties similar but the subject matters distinct: the initial suit concerned a land dispute while the appeal concerned succession of the deceased's estate, with no nexus between them. The application was dismissed with no order as to costs. Judgment was delivered virtually at Kilgoris on 27 July 2021 by Mohamed N. Kullow J.

Key legal issues

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Whether the proceedings in Kilgoris ELC No. 59 of 2018 should be stayed under Section 6 of the Civil Procedure Act pending Nyeri Civil Appeal No. 200 of 2019

Holding

The application was dismissed because the two matters, though between similar parties, concern different subject matters - one land, the other succession - with no nexus between them.

Reasoning

The court set out the res sub-judice rule under Section 6 and its ingredients. Comparing the parties in ELC No. 59 of 2018, Misc Appl Succ No. 9 of 2018 and ELC Appeal No. 24 of 2019, it found the parties similar but the subject matters distinct: the initial suit concerns a land dispute while the appeal concerns succession. Since separate issues would have separate outcomes, the conditions for a stay were not met.

p. 3

Legal principles established

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  • A party invoking res sub-judice must establish more than one suit over the same subject matter, that one was instituted before the other, both pending before competent courts, and that the suits are between the same parties or their representatives
  • Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties

Court orders

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  1. 1.Application dated 31/10/2019 dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 6
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Sections 1A, 1B, 3A and 6 of the Civil Procedure Act and Order 51 Rule 1 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, "Talengo Nkoliai & another (suing as the legal rep of the estate of Letuk Ole Nkoliai) v Samuel Taiswa Ololparaki & 4 others [2021] KEELC 2189 (KLR)", Case Analysis (2021). Notice of Motion dated 31/10/2019 in Kilgoris ELC No. 59 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2189/eng@2021-07-27

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