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ELCDismissedNot stated in judgment (Notice of Motion dated 18th November, 2020)· [2021] KEELC 4005 (KLR)

Rehema Kazungu Baya v Tulip Development Limited [2021] KEELC 4005 (KLR)

Environment and Land Court
11 March 2021
CYC.K. Yano
1,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court confirmed that duplicate land suits get stayed, not thrown out, under Section 6 of Kenya's Civil Procedure Act.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated 18th November 2020 seeking to strike out the Plaintiff's suit on the grounds that it was frivolous, vexatious and an abuse of process, being sub judice in light of two prior suits - ELC No. 82 of 2017 (allegedly withdrawn) and ELC No. 120 of 2017 (pending) - filed by the Plaintiff against the same Defendant over LR No. MN/I/3220. The Defendant, through the affidavit of its director Iqbal Valli Hussein, also accused the Plaintiff of material non-disclosure and manipulating a copy of the title to conceal entries. The Plaintiff opposed, deponing that she was unaware her former advocate had withdrawn ELC No. 82 of 2017 or filed ELC No. 120 of 2017 without her instructions, and that she had complained to the Advocate's Complaints Commission. She urged the court, guided by Article 159 of the Constitution, to order consolidation instead of striking out. The court held that the suit offended the doctrine of sub judice under Section 6 of the Civil Procedure Act, the statutory conditions for sub judice being met. However, since Section 6's remedy is a 'stay of suit', striking out was inappropriate. The court also declined to find abuse of process because the withdrawal and filing of the previous suits were themselves contested. The court dismissed the application, stayed the suit pending determination of the earlier cases, and awarded the Defendant the costs of the application.

Key legal issues

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01

Whether the suit offends the doctrine of sub judice under Section 6 of the Civil Procedure Act

Holding

Yes - the suit is sub judice given the pendency of ELC No. 82 of 2017 and ELC No. 120 of 2017 between the same parties over the same subject matter

Reasoning

Applying Section 6 of the Civil Procedure Act and the conditions in Republic v Registrar of Societies Ex-parte Kirima, the court found that previous suits involving the same parties and substantially similar reliefs were pending or subject to controversy. The elements of sub judice were therefore satisfied, but the court held the statutory consequence is stay, not striking out.

p. 2
02

Whether the filing of the suit amounts to an abuse of court process

Holding

No - the court could not find abuse of process because the withdrawal of ELC No. 82 of 2017 and the filing of ELC No. 120 of 2017 are themselves contested

Reasoning

The Plaintiff deponed that her former advocate withdrew ELC No. 82 of 2017 and filed ELC No. 120 of 2017 without her instructions, and she lodged a complaint with the Advocate's Complaints Commission. Since those matters are subject to controversy, the court could not safely conclude that instituting this suit was an abuse of process.

p. 2

Legal principles established

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  • The remedy for a suit offending the sub judice rule under Section 6 of the Civil Procedure Act is a stay of suit, not striking out

Court orders

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  1. 1.Notice of Motion dated 18th November 2020 dismissed
  2. 2.Suit stayed until ELC No. 82 of 2017 and/or ELC No. 120 of 2017 are determined
  3. 3.Plaintiff to meet the Defendant's costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Republic -v- Registrar of Societies - Kenya & 2 Others Ex-parte Moses Kirima & 2 Others
    (2017) eKLR
  • Aviation & Airport Services Workers Union (K) -v- Kenya Airport Authority & Another
    (2014) eKLR
  • FM -v- EKN
    (2019) eKLR
  • Patriotic Guards Ltd -v- James Kipchirchir Sambu
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Section 6 of the Civil Procedure Act

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, "Rehema Kazungu Baya v Tulip Development Limited [2021] KEELC 4005 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 18th November, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4005/eng@2021-03-11

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