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ELCStruck OutMalindi ELC Suit (filed 15th June 2020)· [2021] KEELC 2485 (KLR)

Kache Harisson Shutu & 3 others v Harrison Charo Shutu & 4 others [2021] KEELC 2485 (KLR)

Environment and Land Court
16 July 2021
6,355 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 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

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Executive summary

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Four Plaintiffs, being the wife, mother and children of the 1st Defendant, sought an injunction restraining the five Defendants from trespassing on, transferring or interfering with their possession of LR No. 8897 Malindi, contending that the 1st Defendant's registration as proprietor by adverse possession (as affirmed by the Court of Appeal in Chevron (K) Ltd v Harrison Charo Wa Shutu) created an implied trust in their favour and that spousal consent was required for sales of portions of the land. A second application sought committal of the 2nd Defendant and attachment of the property for contempt of an interim injunction issued on 16th June 2020. The 2nd and 3rd Defendants raised preliminary objections: the 2nd Defendant on cause of action and interest, the 3rd Defendant on sub judice grounds. The court declined the 2nd Defendant's objection because it required ascertainment of facts, per the Mukisa Biscuits definition of a preliminary objection. On contempt, applying Mutirika v Baharini Farm Ltd and Republic v Ahmad Abolfathi Mohamed, the court found the application rested on speculation, the affidavit interchanged the 2nd and 3rd Defendants, and the wilful disobedience of the 2nd Defendant was not proved; that application was dismissed with costs. The court held the suit res sub-judice Malindi CMCC No. 27 of 2020 and No. 34 of 2020 under Section 6 of the Civil Procedure Act, noting the 1st Plaintiff had applied to be enjoined in the earlier suit and that the Plaint falsely denied the existence of pending suits. Following the Law Society of Kenya case, the suit was held an abuse of process. Both the Motion of 15th June 2020 and the suit were struck out with costs.

Key legal issues

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01

Standard of proof in contempt of court proceedings

Holding

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

Reasoning

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.

p. 5
02

Whether the 2nd and 3rd Defendants' preliminary objections were sustainable

Holding

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

Reasoning

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.

p. 6
03

Res sub-judice and abuse of court process

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Plaintiffs' Second Application dated 19th June 2020 seeking contempt orders against the 2nd Defendant is dismissed with costs
  2. 2.The Plaintiffs' First Application dated 15th June 2020 is struck out
  3. 3.The suit is struck out for being sub judice and an abuse of the court process
  4. 4.Costs awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 1A and 1B
  • Environment and Land Court ActSection 29
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Land Act

Cases cited (10)

  • Chevron (K) Ltd –vs- Harrison Charo Wa Shutu
    Civil Appeal No. 17 of 2016 (Malindi)
  • Mutirika –vs- Baharini Farm Ltd
    (1985) KLR 229, 234
  • Republic –vs- Ahmad Abolfathi Mohamed & Another
    Criminal Application No. 2 of 2018, eKLR
  • Mukisa Biscuits Manufacturers Ltd –vs- Westend Distributors Ltd
    (1969) EA 696
  • Kenya National Commission on Human Rights –vs- The Attorney General & Another
    (2020) eKLR
  • Barclays Bank of Kenya Ltd –vs- Elizabeth Agidza & 2 Others
    (2012) eKLR
  • Thiba Min Hydro Co. Ltd –vs- Josphat Kairu Ndwiga
    (2013) eKLR
  • Republic –vs- Paul Kihara Kariuki & 2 Others Ex-parte Law Society of Kenya
    (2020) eKLR
  • Shabirali Fakruddin –vs- Francis Xavier Ongoro
    Malindi CMCC No. 27 of 2020
  • Mary Syevutha Peter –vs- Alfred Agunga & Others
    Malindi CMCC No. 34 of 2020
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

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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, "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.