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ELCDismissedELC Case (Nairobi) – suit filed by plaint dated 24/06/2018; ruling on notice of motion dated 30/01/2020· [2021] KEELC 2535 (KLR)

Lydia S Yeswa v Terakate Properties Limited [2021] KEELC 2535 (KLR)

Environment and Land Court
12 July 2021
1,370 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a property refund lawsuit because a related earlier case involved different issues and different parties.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 24/06/2018 for a refund of Kshs. 1,400,000/= being the purchase price of Plots Numbers 121 and 122, subdivisions of L.R. Number 11329 along Thika Road. Before hearing, the defendant lodged a notice of motion dated 30/01/2020 seeking a stay of proceedings pending hearing and determination of ELC Case No. 3 of 2009, Terakate Properties Limited v Develco Investments Limited & others, contending the two suits were similar, risked conflicting decisions, duplication, and confusion, and noting twenty-six interested parties in the earlier suit and an injunction in ELC Case No. 58 of 2011. The plaintiff opposed, asserting she was a stranger to the earlier suit, that the reliefs differed, and that the earlier suit predated her sale contract. In a ruling delivered at Nairobi on 12 July 2021, B M Eboso J framed a single issue: whether the criteria for stay under the res sub-judice doctrine in Section 6 of the Civil Procedure Act were satisfied, adopting the Supreme Court's four-element test in the Kenya National Commission on Human Rights case. The court found common ground that the earlier suit came first and both courts were competent, but held that the subject matters differed – this suit sought a refund of the purchase price while the earlier suit concerned land and sought declaratory and injunctive relief – and that the parties were not the same, the plaintiff being absent from the 2009 suit. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the two suits (this suit and ELC Case No. 3 of 2009) raise the same subject matter

Holding

They do not: the plaintiff here seeks a refund of the purchase price, while ELC Case No. 3 of 2009 concerns ownership of the land and seeks declaratory and injunctive relief

Reasoning

The court examined the pleadings and found the plaintiff's suit is about recovering the purchase price for Plots 121 and 122, not about title to L.R. 11329 itself. The earlier suit by the defendant seeks declaratory and injunctive orders over the land. Because the matters in issue are not directly and substantially the same, the Section 6 Civil Procedure Act threshold is not met.

p. 2
02

Whether the parties in the two suits are the same or litigating under the same title

Holding

They are not: although the defendant is the plaintiff in ELC Case No. 3 of 2009, the plaintiff in this suit is not a party to that case

Reasoning

Section 6 requires that the previously instituted suit be between the same parties, or parties under whom they claim, litigating under the same title. The court perused the plaint in ELC Case No. 3 of 2009 and confirmed the present plaintiff was not a party there, nor was she shown to claim under any such party. This element accordingly failed.

p. 2

Legal principles established

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  • Stay of proceedings on res sub-judice grounds requires that the suits involve the same subject matter, that one was instituted before the other, that both are pending before competent courts, and that the suits are between the same parties or their representatives

Court orders

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  1. 1.The defendant's notice of motion is dismissed for lack of merit
  2. 2.The defendant shall bear costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (4)

  • H. Young (E.A) Limited & another v James Mwangi & Another (2016) eKLR
  • Hirschfield and another v Management Associates (Pty) Limited [2003] 1 BLR 174 (IC)
    [2003] 1 BLR 174 (IC)
  • Global Tours & Travels Limited; Nairobi HC Winding up Cause No.43 of 2000
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application assessed under Section 6 of the Civil Procedure Act (res sub-judice)

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, "Lydia S Yeswa v Terakate Properties Limited [2021] KEELC 2535 (KLR)", Case Analysis (2021). ELC Case (Nairobi) – suit filed by plaint dated 24/06/2018; ruling on notice of motion dated 30/01/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2535/eng@2021-07-12

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