Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in judgment· [2022] KEELC 493 (KLR)

Evans Simiyu Sundwa & 97 others v Tawai Limited & 16 others [2022] KEELC 493 (KLR)

Environment and Land Court
22 March 2022
FNFred Nyagaka
6,044 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Kitale struck out a land suit filed without court permission and covering issues already decided in an earlier case.

What this practically means

#

Executive summary

#
The Applicants, purporting to be over 1,000 occupiers, members, shareholders and innocent purchasers on part of L.R. No. 5707 in Trans-Nzoia County, moved the Court by Notice of Motion dated 17/11/2021 seeking injunctions to restrain Eldoret Express Co. Ltd (the 13th Defendant) from evicting them or executing orders issued on 23/06/2021 in Eldoret ELC No. 87 of 2015 (formerly Kitale HCC No. 18 of 2008), a declaration that they were condemned unheard in that case, and directions to the Chief Land Registrar and Director of Survey to verify the authenticity of titles L.R. No. 5707(R) and 5707(6). They contended that Tawai Limited litigated the Eldoret case without involving its members, breaching natural justice. The 1st, 4th, 8th, 9th and 12th Respondents opposed, arguing the suit was res judicata, duplicitous, and violated an order of 11/06/2019 in Kitale HCCC No. 22 of 2018 barring suits relating to Tawai Limited without leave; they also alleged forged signatures, including of a deceased person. The rival faction of the 1st Respondent supported parts of the application. The Court framed four issues and held: the suit was res judicata since the Applicants were subsumed in Tawai Limited's title and should have sought a hearing in the same forum; a fresh suit cannot amount to judicial review of a coordinate court's decision; and the suit, filed without the mandated leave, was incompetent and fatally defective. The Court struck out the suit, noting threats of bloodshed amounted to blackmail and that members must obey court orders peacefully.

Key legal issues

#
01

Whether the suit is res judicata of Eldoret ELC No. 87 of 2015

Holding

Yes; the Applicants were subsumed in the title of the 1st Defendant (Tawai Limited) in the Eldoret case and the same issues, being settled there, cannot be reopened in a fresh suit

Reasoning

The applicants claimed to be members of Tawai Limited, which litigated Eldoret ELC No. 87 of 2015 on behalf of its members collectively. The eviction orders of 23/06/2021 arose from that concluded case over the same land. Raising the same grievances in a fresh suit offends section 7 of the Civil Procedure Act. An aggrieved non-party should seek to be heard in the same forum rather than file a new suit.

p. 6
02

Whether the suit contravened the order of 11/06/2019 in Kitale High Court Civil Case No. 22 of 2018 requiring leave before filing suits relating to Tawai Limited

Holding

Yes; the suit was filed without leave and is incompetent and fatally defective

Reasoning

The order of 11/06/2019 barred any Director, past or present, member, shareholder or purchaser of the suit parcel from filing any suit, application or claim relating to Tawai Limited without leave. The Applicants and rival Respondents did not rebut the existence or import of the order. The suit having been instituted by such persons without leave, it had to be struck out.

p. 6
03

Whether a fresh suit can be used to challenge orders of a court of concurrent jurisdiction as a condemnation unheard

Holding

No; that is an attempt to subject a coordinate court's decision to judicial review, which is impermissible

Reasoning

The Applicants sought effectively to nullify the Eldoret court's process by complaining in a new suit that they were condemned unheard. The Eldoret court is of the same level and not subordinate. A party left out of concluded proceedings must return to that forum to request a hearing, not institute a separate suit.

04

Whether threats of chaos, violence or bloodshed justify withholding court orders

Holding

No; obedience to the law is key and such threats amount to blackmail of the Court

Reasoning

The Applicants argued eviction would cause bloodshed and humanitarian crisis. The Court held it cannot be hoodwinked into withholding orders due to threatened disobedience; a person ordered to vacate another's land must do so peacefully in a civilized society respecting the rule of law.

p. 5

Legal principles established

#
  • Purchase of land from a shareholder or member does not automatically qualify one as a member of a company; membership is acquired by purchase of shares
  • A limited liability company litigates on behalf of its members collectively and members cannot litigate separately on matters litigated by the company; the doctrine of res judicata applies
  • A party excluded from proceedings who claims not to have been heard must return to the same forum to seek a hearing, not institute a fresh suit
  • Parties cannot resist obedience to court orders by threatening chaos or bloodshed
  • Non-compliance with an order requiring leave of court before filing suit renders the suit incompetent and liable to be struck out

Court orders

#
  1. 1.The suit struck out for being instituted without leave of the Court contrary to the order issued on 11/06/2019 in Kitale High Court Civil Case No. 22 of 2018
  2. 2.Orders accordingly
Jurisdiction invoked
Articles 40 and 159 of the Constitution of Kenya, 2010; Sections 1A, 1B, 3, 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Evans Simiyu Sundwa & 97 others v Tawai Limited & 16 others [2022] KEELC 493 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/493/eng@2022-03-22

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