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ELCPartially AllowedMeru ELC No. 24 of 2020· [2021] KEELC 3997 (KLR)

Godfrey Mugambi Kimathi & 3 others v Stanley Kimathi Mwirichia [2021] KEELC 3997 (KLR)

Environment and Land Court
17 March 2021
2,218 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 declined a family land dispute injunction but froze dealings on the property through inhibition orders while related family suits are heard together.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Meru on a notice of motion dated 16/07/2020 in which the plaintiffs, principally the 1st plaintiff (son of the defendant), sought interlocutory injunctions restraining the defendant from evicting, harassing, selling, transferring or dealing in parcel ABOTHUGUCHI/MARIENE/2452, and an order that rental proceeds from Meru Town Block II/807 be deposited in a joint interest-earning account or in court. The 1st plaintiff averred that he repaid loans secured on parcels ABOTHUGUCHI/MARIENE/981 and Block II/807, that parcel 981 was subdivided into 2451 and 2452, and that the defendant gave him parcel 2452 on which he has settled and developed; he further claimed the defendant holds Block II/807 in trust for the family. The defendant opposed the application, raising res sub judice on the basis of two pending suits, Meru ELC Case No. 151 of 2017 and Meru CMCC No. 5 of 2019, and asserting the suit properties were gifted to him inter vivos. Framing two issues - sub judice and merit - the court held the res sub judice doctrine was not wholly applicable since the 1st plaintiff is not a party to ELC 151 of 2017, his claim over parcel 2452 is different, and parcel 807 was not pleaded there. However, noting the family nature of the disputes over trust, fraud and gifts inter vivos, the court declined injunctions, ordered the existing inhibition orders to remain in force, directed the suit to be handled alongside ELC 151 of 2017, allowed the application only in terms of prayer no. 4, made costs abide the main suit, and set a mention for 19.4.2021.

Key legal issues

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01

Whether the application is res sub judice Meru ELC Case No. 151 of 2017 and Meru CMCC No. 5 of 2019

Holding

The doctrine of res sub judice is not wholly applicable: the 1st plaintiff is not a party to ELC 151 of 2017, his claim over parcel 2452 is completely different from the claims in that suit, and parcel 807 is not part of the pleadings in that suit.

Reasoning

The court compared the pleadings in the three suits. ELC 151 of 2017 concerns parcels 980-982 and a trust claim by the 3rd and 4th plaintiffs; CMCC No. 5 of 2019 concerns a chargee/chargor dispute over Block II/807. The 1st plaintiff's claim that he paid off the loan over parcel 981 and was given the subdivision 2452 is a distinct claim, and he is not a party to ELC 151 of 2017. However, because the parties are family members whose claims trace to the same estate, the court ordered the suits to be handled alongside each other.

p. 3
02

Whether the interlocutory injunction orders sought are merited

Holding

Injunctions declined at this stage; instead the existing orders of inhibition remain in force until the suit is determined.

Reasoning

Because any orders made in this suit would have a bearing on ELC 151 of 2017, and the parties are family members litigating related questions of trust, fraud and gift inter vivos, the court chose the more measured preservation remedy of maintaining inhibition orders rather than granting injunctions, and directed that the suits be handled together.

p. 3

Legal principles established

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  • A party invoking the doctrine of res sub judice must establish multiple suits over the same subject matter, one instituted before the other, both pending before competent courts, and between the same parties or their representatives.
  • The purpose of Section 6 of the Civil Procedure Act is to prevent multiplicity of suits and conflicting decisions by courts of competent jurisdiction.
  • Once an issue of jurisdiction is raised, the court must determine it before taking any further step.

Court orders

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  1. 1.Orders of injunction declined at this stage
  2. 2.Orders of inhibition to remain in force until the suit is determined
  3. 3.The suit to be handled alongside Meru ELC No. 151 of 2017
  4. 4.Application allowed only in terms of prayer no. 4 (spent)
  5. 5.Costs of the application to abide the outcome of the main suit
  6. 6.Mention on 19.4.2021
  7. 7.Ruling delivered by electronic mail, parties deemed to have waived compliance with Order 21 rule 1 of the Civil Procedure Rules

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1(a) & (b)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 63
  • Civil Procedure Act (Cap 21)Section 6
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticle 10(2)
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
  • Republic v Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others
    [2017] eKLR
  • ASL Credit Limited v Abdi Basid Sheikh Ali & another
    [2019] eKLR
Jurisdiction invoked
Order 40 rule 1(a) & (b) of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A & 63 of the Civil Procedure Act (Cap 21), Articles 10(2) and 159 of the Constitution of Kenya

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, "Godfrey Mugambi Kimathi & 3 others v Stanley Kimathi Mwirichia [2021] KEELC 3997 (KLR)", Case Analysis (2021). Meru ELC No. 24 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3997/eng@2021-03-17

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