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ELCStruck OutNot stated in the judgment extract (suit property NAIROBI/BLOCK/97/2347)· [2022] KEELC 342 (KLR)

Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others [2022] KEELC 342 (KLR)

Environment and Land Court
28 March 2022
EWE. K. Wabwoto
2,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a second land suit over the same Nairobi property because an earlier case between similar parties was already pending.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) dealt with the Plaintiff's Notice of Motion dated 7th July 2021 seeking temporary injunctive orders against the 1st Defendant over suit property NAIROBI/BLOCK/97/2347, and the 1st Defendant's Notice of Preliminary Objection dated 27th July 2021. The Plaintiff, who claimed to have purchased the property from the 3rd Defendant (the National Social Security Fund) under a tenant purchase scheme for Ksh 315,000 and to have occupied it since 2001, relied on Giella v Cassman Brown, Nguruman and Mrao to argue a prima facie case and a threat of eviction without notice. The 3rd Defendant supported the application, producing a surveyor's report recommending investigation of the root of the title. The 1st Defendant opposed, arguing the suit was sub judice Nairobi ELC No. E258 of 2020 and that the Plaintiff had delayed. The court framed two issues: sub judice and appropriate remedies. Applying section 6 of the Civil Procedure Act, the Supreme Court's exposition in KNCHR v Attorney General, David Ndii, and Muchanga Investments, the court found the present suit duplicated the pending E258 of 2020 suit over the same parcel and similar parties, amounting to abuse of process. Invoking Order 2 rule 15(1)(d), the court struck out the suit with costs to the 1st and 2nd Defendants, dismissed the Plaintiff's application as unmerited, and discharged all previously issued orders, including the status quo orders.

Key legal issues

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01

Whether the suit is sub judice by reason of the pending Nairobi ELC No. E258 of 2020

Holding

Yes. The suit is directly and substantially in issue in a previously instituted suit involving the same property and similar parties, contrary to section 6 of the Civil Procedure Act, and its filing amounts to abuse of process.

Reasoning

Applying section 6 of the Civil Procedure Act and the Supreme Court's statement of the sub judice doctrine in KNCHR v AG, the court compared the pleadings in ELC No. E258 of 2020 and found the same parcel (NAIROBI/BLOCK 97/2347) and similar parties in issue. Relying also on Muchanga Investments, the court held that pursuing parallel proceedings over the same subject matter is vexatious, oppressive, wasteful of judicial resources, and constitutes abuse of process justifying striking out.

p. 4
02

The appropriate remedy where a suit is an abuse of process

Holding

The suit should be struck out under Order 2 rule 15(1)(d) of the Civil Procedure Rules 2010 rather than allowed to proceed to trial, notwithstanding the general preference for determination on the merits.

Reasoning

The court invoked Order 2 rule 15(1)(d), which permits striking out pleadings that are otherwise an abuse of the process of the court, with power to stay or dismiss the suit. While courts should try suits on their merits, the court held it should not shy away from ridding the process of clearly abusive proceedings; striking out with costs and discharge of interim orders was the proper order.

p. 4

Legal principles established

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  • Filing a new and separate suit despite the existence of a similar pending case over the same subject matter between similar parties is sub judice and an abuse of the court process warranting striking out under Order 2 rule 15(1)(d)
  • Multiplicity of actions on the same matter between the same parties, even where a right to bring the action exists, constitutes abuse of process

Court orders

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  1. 1.The Plaintiff's suit is struck out for being an abuse of the court process
  2. 2.Costs of the suit awarded to the 1st and 2nd Defendants
  3. 3.Any orders previously issued (including the status quo orders) are discharged
  4. 4.The Plaintiff's application dated 7th July 2021 is dismissed as unmerited
  5. 5.The 1st Defendant's Notice of Preliminary Objection dated 27th July 2021 effectively succeeds (suit struck out on the sub judice/abuse of process finding)

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure Rules 2010Order 2 rule 15(1)(d)

Cases cited (8)

  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Mrao Limited v First American Bank of Kenya Ltd
    (2003) eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • David Ndii & others versus Attorney General & Others
    2021 eKLR
  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No. 25 of 2002 (2009) eKLR 229
  • Samson Masaba Munikah & Elina Mwayitsi Nakaya v Nancy Wanjiru Wangai
    Milimani ELC No. E258 of 2020
  • Nancy Wanjiru Wangai v National Social Security Fund & 4 Others
    Nairobi ELC No. 554 of 2008 [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; Civil Procedure Act and Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others [2022] KEELC 342 (KLR)", Case Analysis (2022). Not stated in the judgment extract (suit property NAIROBI/BLOCK/97/2347). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/342/eng@2022-03-28

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