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ELCDismissedBusia CMC ELC (suit filed 2017) - application dated 15th October 2021· [2022] KEELC 95 (KLR)

Eroni v Sokoni & 4 others (Environment & Land Case 189 of 2017) [2022] KEELC 95 (KLR)

Environment and Land Court (Magistrates' Court, Busia)
9 June 2022
AOA. OMOLLO
1,160 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 dismissed a bid to consolidate two land and burial suits, ruling that filing a duplicate case while another was active abused court process.

What this practically means

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Executive summary

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The applicant, Patrick Domiano Eroni, moved the court by notice of motion dated 15th October 2021 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules 2010, seeking a stay of proceedings in Busia CMC ELC No. 002 of 2021 (a burial dispute he filed against the 1st and 2nd defendants), an order transferring that suit to this court, and its consolidation with the present suit, which he filed in 2017 seeking eviction from and permanent injunction over L.R. Bukhayo/Lupida/2266. He argued the two suits both concerned ownership, occupation and use of the same parcel and relied on Order 11 Rule 3(1)(h) and authorities on consolidation. The defendants opposed, contending the CMC suit was solely about the burial of Mary Sokoni and that, the body having been buried, nothing remained to transfer; the spent issue was akin to a withdrawn one. The court, applying the Supreme Court's decision in Law Society of Kenya v Center for Human Rights and Democracy and Korean United Church of Kenya, accepted that consolidation serves expeditious and proportionate disposal. However, it held the plaintiff had an active suit when he filed the second one and could not explain the multiplicity, amounting to abuse of court process that the court would not sanitise. It further found the exhumation prayer could be determined without consolidation. The application was dismissed with costs to the defendants/respondents.

Key legal issues

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01

Whether consolidation/transfer of the Busia CMC ELC suit was merited

Holding

Not merited; the applicant filed a second suit while already having an active suit, amounting to abuse of court process.

Reasoning

The court accepted the principles from Korean United Church of Kenya and Law Society of Kenya that consolidation serves expeditious and proportionate disposal of disputes. However, when the suit sought to be transferred was filed, the plaintiff already had an active suit and did not explain why the issues were not brought into it. Filing a second suit was abuse of process which the court would not sanitise.

p. 3
02

Whether there was anything left to transfer in the burial dispute

Holding

No; the burial had taken place and the exhumation prayer could be determined without consolidation.

Reasoning

The plaint in the suit below sought only to stop burial or to exhume the body. The burial took place and was not denied. The respondents argued the cause was spent, synonymous with a withdrawn issue. The court found the exhumation prayer could be determined independently of any consolidation order.

p. 3

Legal principles established

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  • A party should not abuse the court process and then seek refuge under consolidation; filing a second suit when an active suit exists is abuse of court process.

Court orders

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  1. 1.The notice of motion application dated 15th October 2021 be and is hereby dismissed with costs to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules 2010Order 51 Rule 1, 3, 4, 8, 10(1)
  • Civil Procedure Rules 2010Order 11 Rule 3(1)(h)

Cases cited (4)

  • Joseph Okoyo v Edwin Dickson Wasunna
    [2014] eKLR
  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
  • Law Society of Kenya v Center For Human Rights and Democracy & 12 Others
    [2014] eKLR
  • Korean United Church of Kenya & 3 Others vs Seng Ha Sang
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 Rules 1, 3, 4, 8 and 10(1) of the Civil Procedure Rules 2010

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, "Eroni v Sokoni & 4 others (Environment & Land Case 189 of 2017) [2022] KEELC 95 (KLR)", Case Analysis (2022). Busia CMC ELC (suit filed 2017) - application dated 15th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/95/eng@2022-06-09

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