Ramadhan Ali Mwatsahu & v 5 others v Tsangwa Ngala Chome &5 others [2021] KEELC 4594 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res sub-judice
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
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.
Abuse of Court process and challenge to co-ordinate court judgment
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
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.
Legal principles established
#- 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
#- 1.The Petition is struck out with costs to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.