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ELCStruck OutPetition dated 31st October 2019 (Malindi)· [2021] KEELC 4594 (KLR)

Ramadhan Ali Mwatsahu & v 5 others v Tsangwa Ngala Chome &5 others [2021] KEELC 4594 (KLR)

Environment and Land Court
29 January 2021
1,614 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land petition because the same dispute was already pending in another court.

What this practically means

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Executive summary

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Six Petitioners filed a Petition on 31st October 2019 seeking a declaration that the 1st Respondent's clan land boundary does not extend into the KDF Mariakani Barracks, an order of certiorari quashing a Certificate of Title re-issued on 17th September 2018 in the name of Tsangwa Ngala Chome for LR No. Madzimbani/Mitangoni/B/1, an injunction restraining encroachment, and compensation for land compulsorily acquired for public facilities including the Barracks. The 1st Respondent raised a Preliminary Objection arguing the Petition was res sub-judice given the pending Malindi Petition No. 26 of 2016, in which the same Petitioners seek compensation from Government institutions including the Kenya Defence Forces over the same land; that the Court lacked jurisdiction to revisit the judgment of Angote J in Malindi ELC No. 243 of 2014, under appeal in the Court of Appeal; and that the Petition was an abuse of process. The Petitioners contended the parties, subject matter and reliefs differed. Olola J found that the land in both Petitions was the same parcel, that the Petitioners were in fact aggrieved by the 2018 judgment of a co-ordinate judge, and that the Petition offended Section 6 of the Civil Procedure Act and amounted to an abuse of process. Citing Henry Njagi Muruana v A.O. Okello, the Court struck out the Petition with costs to the 1st Respondent on 29th January 2021.

Key legal issues

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01

Res sub-judice

Holding

The Petition offends Section 6 of the Civil Procedure Act as the same land and issues are pending in Malindi Petition No. 26 of 2016

Reasoning

The court found the land described in the earlier Petition as measuring approximately 1656.7 Ha near Mariakani Township is the very same parcel now in dispute. Petition No. 26 of 2016, filed by the same Petitioners seeking compensation, remains pending. Section 6 of the Civil Procedure Act in mandatory terms bars trial of a suit whose subject matter is directly and substantially in issue in a previously instituted pending suit.

p. 3
02

Abuse of Court process and challenge to co-ordinate court judgment

Holding

The Petition was an attempt to circumvent the judgment in Malindi ELC No. 243 of 2014 by Angote J and constitutes an abuse of process; the proper forum for grievances against that judgment is the Court of Appeal

Reasoning

The Petitioners' own grounds showed they were aggrieved by the 19th July 2018 judgment of Angote J. This Court could not revise or overturn a judgment of a co-ordinate court, and an appeal thereon was pending in the Court of Appeal. Filing this Petition to circumvent that judgment was an abuse of process which the law requires be brought to an end.

p. 3

Legal principles established

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  • A court shall not proceed with a suit where the matter in issue is directly and substantially in issue in a previously instituted pending suit between the same parties litigating under the same title
  • A judge of co-ordinate jurisdiction cannot set aside the decision of another judge or exercise appellate powers over it

Court orders

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  1. 1.The Petition is struck out with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Community Land Act
  • Constitution of Kenya, 2010

Cases cited (1)

  • Henry Njagi Muruana –vs- A.O. Okello & Another
    Civil Appeal No. 167 of 2009
On appeal from
null
null
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act and Article 162(2) of the Constitution; challenged via Preliminary Objection on res sub-judice under 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, "Ramadhan Ali Mwatsahu & v 5 others v Tsangwa Ngala Chome &5 others [2021] KEELC 4594 (KLR)", Case Analysis (2021). Petition dated 31st October 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4594/eng@2021-01-29

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