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ELCStruck OutHoma Bay ELC Originating Summons dated 5th August 2019· [2021] KEELC 4773 (KLR)

Reuben Omwa Okello v Alex Otieno Guda & 2 others [2021] KEELC 4773 (KLR)

Environment and Land Court
8 December 2021
GOG M A Ongondo
1,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Homa Bay court struck out a later land suit because an earlier case over the same land was already underway, and the later suit was defective.

What this practically means

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Executive summary

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The plaintiff, Reuben Omwa Okello, moved the Environment and Land Court at Homa Bay by Notice of Motion dated 22nd August 2019 seeking a stay of proceedings in Mbita Principal Magistrate's Court Environment and Land Case No. 36 of 2018, in which the respondents sought to evict him from LR No. Lambwe West/Lambwe West "B"/731, pending determination of an originating summons dated 5th August 2019. He complained he had recently learned of the Mbita suit and risked losing his home and livelihood. The respondents opposed, deposing that the applicant knew of the Mbita suit, filed a defence on 5th March 2019, and had participated in the part-heard suit. The court directed that the application be argued by written submissions. The applicant's counsel argued the application was unopposed; the respondents invoked section 6 of the Civil Procedure Act on stay of suits. The court found the parties and subject matter identical in both suits, noted the Mbita suit was lodged on 28th December 2018 while this suit was filed on 26th August 2019, and held that the first-in-time principle under Article 10(2)(b) of the Constitution favoured the respondents. The land's location placed the dispute within the Mbita PM's court's jurisdiction under sections 11, 12 and 15 CPA. The court further observed that the originating summons sought only interim orders without disclosing the legal basis for the suit, rendering it incompetent. The entire suit, including the application, was struck out, with each party bearing their own costs under the proviso to section 27(1) CPA.

Key legal issues

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Whether stay of the Mbita PM's court suit should issue under section 6 of the Civil Procedure Act

Holding

The application failed. The Mbita suit was lodged first (28th December 2018) versus 26th August 2019 for this suit, was partly heard, and the applicant had actively participated; equity favoured the earlier suit. The land lay within Mbita PM's court's jurisdiction, and this suit, mounted by originating summons seeking only interim orders, was incompetent.

Reasoning

The court found the parties and subject matter identical, with the Mbita suit filed earlier and partly heard with the applicant's participation. Section 6 CPA on stay of suits applied, and the first-in-time principle under Article 10(2)(b) tilted against the applicant. The land's location placed the dispute within Mbita PM's court's territorial jurisdiction under sections 11, 12 and 15 CPA. The originating summons sought only interim relief without disclosing the substantive legal basis, rendering the suit incompetent.

p. 2

Legal principles established

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  • Where a later suit is lodged after an earlier suit over the same subject matter, equity as to first in time favours the parties in the earlier suit
  • A dispute over land falls within the jurisdiction of the court nearest to the land in the first instance

Court orders

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  1. 1.The entire suit initiated by way of originating summons dated 5th August 2019, inclusive of the application, struck out
  2. 2.Each party to bear own costs of the application and the suit

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A, 6, 11, 12, 15, 27(1)
  • Civil Procedure Rules, 2010Order 51 Rule 16; Order 8 Rule 4
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Environment and Land Court Act, 2015 (2011)Section 13(7)

Cases cited (2)

  • Re Giles (2)
    (1890) 43 ChD 391
  • Kibutiri-vs-Kibutiri
    1983 eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 6 of the Civil Procedure Act (Chapter 21, Laws of Kenya); section 13(7) of the Environment and Land Court Act, 2015 (2011)

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, "Reuben Omwa Okello v Alex Otieno Guda & 2 others [2021] KEELC 4773 (KLR)", Case Analysis (2021). Homa Bay ELC Originating Summons dated 5th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4773/eng@2021-12-08

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