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ELCPartially AllowedNotice of Motion dated 26th July, 2019 in the suit filed by Plaint dated 25th April, 2016· [2021] KEELC 3953 (KLR)

Mary Kwamboka Mose v Asha Chebet Kirwa (being sued in her own capacity and as personal representative of the Estate of Salem Kiprono Kirwa) [2021] KEELC 3953 (KLR)

Environment and Land Court
24 March 2021
867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute was paused because the same parties were already fighting over the same land in a pending appeal.

What this practically means

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Executive summary

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The Defendant, Asha Chebet Kirwa, moved the Court by Notice of Motion dated 26th July, 2019 seeking a stay of proceedings in this suit, pending the hearing and determination of Court of Appeal Civil Appeal No. 40 of 2018, which arises out of the High Court ruling of 20th September, 2018 in Eldoret High Court Succession Cause No. 192 of 2015 involving the same parties and suit land. The plaintiff, Mary Kwamboka Mose, opposed the application on two grounds: that she had not instructed her counsel to file the appeal and had instructed its withdrawal, and that the appeal, having been filed in October 2018, should be the one stayed rather than this suit filed earlier in April 2016. The Court framed two issues: whether the Defendant had made out a reasonable case for stay, and who should bear the costs. It held that the plaintiff's objection proceedings in the succession cause predated this suit; that the parties and prayers in both matters were substantially the same; and that no documentary evidence proved withdrawal of the appeal, which therefore remained pending. The filing of the later suit contravened Section 6 of the Civil Procedure Act. The Court found merit in the application, granted a stay of this suit pending determination of the appeal, and, although the Defendant was successful, directed that costs of the application be in the cause. The ruling was delivered virtually at Eldoret on 24th March, 2021 by S. M. Kibunja, Judge.

Key legal issues

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01

Whether the Defendant made out a reasonable case for stay of proceedings

Holding

The Court found merit in the Defendant's application, holding that the instant suit, filed after objection proceedings in the succession cause covering the same parties and land, contravened Section 6 of the Civil Procedure Act and should be stayed pending the appeal in the Court of Appeal

Reasoning

The plaintiff had earlier moved the Succession Court in Eldoret High Court Succession Cause No. 192 of 2015 seeking the same four acres out of Uasin Gishu/Tapsagoi/267, and that application was dismissed by ruling of 20th September 2018. An appeal against that ruling, Court of Appeal Civil Appeal No. 40 of 2018, remained pending because no documentary proof of its withdrawal was availed. As parties and prayers in both matters were substantially the same, the later-filed suit offended Section 6 of the Civil Procedure Act and warranted a stay.

p. 2
02

Costs of the application

Holding

Although the successful Defendant would ordinarily be entitled to costs under Section 27 of the Civil Procedure Act, the Court ordered that costs be in the cause

Reasoning

The Court acknowledged the general rule that costs follow the event under Section 27 of the Civil Procedure Act. However, exercising its discretion in the circumstances of this interlocutory application, it declined to award costs immediately and instead directed that costs of the application be held in abeyance and dealt with in the cause.

p. 2

Legal principles established

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  • Where an earlier suit between the same parties over the same subject matter is pending (including on appeal), the later suit contravenes Section 6 of the Civil Procedure Act and should be stayed pending determination of the earlier matter
  • In the absence of documentary evidence of withdrawal of an appeal, the appeal is deemed still pending

Court orders

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  1. 1.Stay of proceedings of this suit pending the hearing and determination of Eldoret Court of Appeal Civil Appeal No. 40 of 2018
  2. 2.Costs of the application be in the cause
  3. 3.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 6
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 27
Jurisdiction invoked
Section 6 of the Civil Procedure Act, Chapter 21, Laws of Kenya (stay of proceedings)

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, "Mary Kwamboka Mose v Asha Chebet Kirwa (being sued in her own capacity and as personal representative of the Estate of Salem Kiprono Kirwa) [2021] KEELC 3953 (KLR)", Case Analysis (2021). Notice of Motion dated 26th July, 2019 in the suit filed by Plaint dated 25th April, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3953/eng@2021-03-24

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