Kache Harisson Shutu & 3 others v Harrison Charo Shutu & 4 others [2021] KEELC 2485 (KLR)
The bottom line
#The Environment and Land Court in Malindi struck out a land dispute suit and a contempt application, punishing the plaintiffs with costs for filing a duplicate case while a similar one was already pending.
What this practically means
#Executive summary
#Key legal issues
#Standard of proof in contempt of court proceedings
The standard is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt, and the plaintiffs failed to meet it; the contempt application was based on speculation
The court invoked Order 40 Rule 3(1) of the Civil Procedure Rules and Section 29 of the Environment and Land Court Act, and adopted Mutirika v Baharini Farm Ltd and the Supreme Court's decision in Republic v Ahmad Abolfathi Mohamed, which requires proof that the contemnor wilfully flouted the order. The supporting affidavit interchanged the 2nd and 3rd Defendants and never explained how the 1st Plaintiff knew those who evicted her were the 2nd Defendant's agents.
Whether the 2nd and 3rd Defendants' preliminary objections were sustainable
The 2nd Defendant's objection failed because it required ascertainment of facts, but the 3rd Defendant's jurisdictional objection under Section 6 of the Civil Procedure Act succeeded
Applying Mukisa Biscuits Manufacturers Ltd v Westend Distributors Ltd, the court held that whether the 2nd to 4th Plaintiffs had enforceable rights or a cause of action against the 2nd Defendant required evidence, so that objection was improper. The 3rd Defendant's objection on res sub-judice was a pure point of law that succeeded.
Res sub-judice and abuse of court process
The suit was res sub-judice the two pending Malindi CMCC suits over the same subject matter, and the Plaintiffs, having applied to be enjoined in those suits, instituted parallel litigation in abuse of the court process
Section 6 of the Civil Procedure Act bars trial of a suit whose matter is directly and substantially in issue in a previously instituted suit between parties litigating under the same title. Malindi CMCC No. 27 of 2020 (Fakruddin v Ongoro) and No. 34 of 2020 (Peter v Agunga & Others) concerned the same property and overlapping parties. The 1st Plaintiff had also applied to be enjoined in CMCC No. 27 of 2020, and the Plaint further falsely asserted that no prior or pending suit existed.
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt; wilful and deliberate flouting must be established
- A preliminary objection cannot be raised where any fact has to be ascertained or where the exercise of judicial discretion is sought
- The sub-judice rule applies to the substance rather than the form of a suit, and a party who has applied to be enjoined in pending proceedings over the same subject matter cannot institute parallel litigation
- Pursuing two processes in two courts at the same time over the same matter amounts to abuse of the court process
Court orders
#- 1.The Plaintiffs' Second Application dated 19th June 2020 seeking contempt orders against the 2nd Defendant is dismissed with costs
- 2.The Plaintiffs' First Application dated 15th June 2020 is struck out
- 3.The suit is struck out for being sub judice and an abuse of the court process
- 4.Costs awarded to the Defendants
- Jurisdiction invoked
- Environment and Land Court Act (original jurisdiction over the suit property LR No. 8897 Malindi); contempt jurisdiction under Section 29 of the Environment and Land Court Act and Order 40 Rule 3(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kache Harisson Shutu & 3 others v Harrison Charo Shutu & 4 others [2021] KEELC 2485 (KLR)", Case Analysis (2021). Malindi ELC Suit (filed 15th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2485/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.