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ELCDismissedNot stated (Motion dated 19/01/2022 in suit arising from Originating Summons dated 15/04/2021)· [2022] KEELC 741 (KLR)

Edward Oduor & 8 others v George A. Odhiambo [2022] KEELC 741 (KLR)

Environment and Land Court (High Court)
17 March 2022
AKA. Y. Koross
858 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 landowners' injunction bid, ruling that re-filing an identical application while an earlier one is still pending abuses court process.

What this practically means

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Executive summary

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The plaintiffs moved the court by notice of motion dated 19/01/2022, anchored on Sections 1A, 1B & 3A and 63(c) & (e) of the Civil Procedure Act and Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules, seeking an interim injunction restraining the defendant from evicting them, demolishing structures or interfering with, selling, charging, disposing of or alienating land parcel EAST GEM/NYAMNINIA/736. The motion was supported by the 1st plaintiff's affidavit; the plaintiffs submitted they had met the Giella v Cassman Brown principles, relying on Mrao Limited v First American Bank and Paul Gitonga Wanjau, citing over 12 years of open occupation and the land's sentimental value. The defendant opposed through a replying affidavit contending the suit was res judicata, having been determined in Kisumu High Court Civil Case No. 197 of 1992 and at execution stage, with leave to appeal disallowed by the Court of Appeal in Civil Application No. E 056 of 2021. The defendant filed no submissions. Framing the sole issue as whether the application was an abuse of court process, the court found that the plaintiffs had, contrary to Order 8 Rule 7, filed a fresh originating summons substituting all plaintiffs instead of an amended one, and had then filed a motion that was a replica of an earlier motion dated 15/04/2021 never prosecuted or withdrawn. Adding parties did not render the earlier motion moot; the duplicate filing risked parallel proceedings and conflicting orders. The court dismissed the motion with costs to the defendant and directed mention on 10/05/2022.

Key legal issues

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Whether the motion dated 19/01/2022 is an abuse of the court process

Holding

Yes; it duplicated a prior motion dated 15/04/2021 that was never prosecuted or withdrawn, risking parallel proceedings and conflicting orders

Reasoning

The court noted the plaintiffs had earlier substituted all plaintiffs via a fresh originating summons contrary to Order 8 Rule 7, then filed a motion that was a replica of an unprosecuted earlier motion. While the earlier motion remained pending and undetermined, filing a similar motion invited parallel proceedings and conflicting orders, rendering the instant motion frivolous, vexatious and an abuse of process.

p. 2

Legal principles established

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  • The mere addition of parties in a suit does not render a previous pending motion moot; a party may not move the court in a similar motion while the earlier one remains undetermined or unwithdrawn
  • Costs follow the event absent intervening circumstances

Court orders

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  1. 1.The Notice of Motion dated 19/01/2022 is dismissed with costs to the defendant
  2. 2.Matter to be mentioned for directions on the 10/05/2022

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) & (e)
  • Civil Procedure RulesOrder 40 Rule 2(1) & (2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 8 Rule 7

Cases cited (3)

  • Giella vs Cassman Brown and Another
    [1973] E.A.358
  • Mrao Limited v First American Bank of Kenya Limited
    [2003] eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others
    (2016) eKLR
Jurisdiction invoked
Sections 1A, 1B & 3A, 63(c) & (e) of the Civil Procedure Act and Order 40 Rule 2(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Edward Oduor & 8 others v George A. Odhiambo [2022] KEELC 741 (KLR)", Case Analysis (2022). Not stated (Motion dated 19/01/2022 in suit arising from Originating Summons dated 15/04/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/741/eng@2022-03-17

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