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ELCOther· [2022] KEELC 882 (KLR)

Elizabeth Kemunto Ongeri v Nelson Ochora Ongwae & 5 others [2022] KEELC 882 (KLR)

Environment and Land Court
14 March 2022
JOJ. M Onyango
2,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land dispute was paused and moved to a lower court because the same fight was already ongoing in another case.

What this practically means

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Executive summary

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The Plaintiff, widow and personal representative of the late Charles Ongeri Matagaro, sued the Defendants claiming that the 5th Defendant unlawfully sub-divided L.R No. WEST KITUTU/BOMATARA/1744 (registered in the name of the late Marisera Okero) into parcels 4637 and 4638, which were transferred to the 1st Defendant and the 3rd and 4th Defendants respectively. The Plaintiff's case was that her late husband bought the land in 1998 from Thomas Oseko Omwena and the family took possession and cultivated it until 2018. She sought a declaration that the sub-division was wrongful, illegal and unlawful and cancellation of the resultant titles. The 1st-4th Defendants filed a Defence and a Preliminary Objection on four grounds: sub-judice given pending CMELC Case No. 128 of 2018, lack of locus standi against the estate of Marisera Okero, illegality of the sale contract under section 45 of the Law of Succession Act, and inability to sue the 1st and 2nd Defendants who are not administrators of the estate. After receiving written submissions, the court found that the subject matter overlapped with the pending lower court suit over parcel 4637 and that under section 6 of the Civil Procedure Act the later-filed suit must be stayed, the doctrine not divesting the court of jurisdiction. The court did not determine the other grounds. Holding that the subject matter value falls within the Chief Magistrate's Court's jurisdiction, the court, furthering the overriding objective, stayed the suit pending determination of CMELC Case No. 128 of 2018, transferred it to the Kisii Chief Magistrate's Court, and ordered that costs of the Preliminary Objection be in the cause.

Key legal issues

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01

Whether the suit is sub-judice and should be stayed

Holding

Yes. The subject matter of this suit (parcel 1744 and its resultant parcels 4637 and 4638) overlaps with the pending lower court suit CMELC Case No. 128 of 2018, so the later-filed suit must be stayed under section 6 of the Civil Procedure Act.

Reasoning

The court found it common ground that the 2nd Defendant had earlier instituted CMELC Case No. 128 of 2018 against the Plaintiff over parcel WEST KITUTU/BOMATARA/4637, one of the resultant titles of parcel 1744. The court held that under section 6 the later suit must be stayed; the doctrine does not oust jurisdiction. The rationale is to avoid multiplicity of suits, saving parties time and money and preventing clogging of the justice system. Counsel conceded that if this suit succeeded, the lower court suit would collapse.

p. 3
02

Whether the suit should be transferred to the Chief Magistrate's Court

Holding

Yes. Since the value of the subject matter falls within the Chief Magistrate's Court's jurisdiction, the court invoked the overriding objective of the Environment and Land Court Act and the Civil Procedure Act to transfer the suit there for hearing.

Reasoning

The court observed that it is enjoined to further the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of disputes. Given that the value of the subject matter falls within the jurisdiction of the Chief Magistrate's Court, it was considered expedient to transfer the suit to that court rather than retain it before the Environment and Land Court.

p. 3

Legal principles established

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  • A suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties must be stayed under section 6 of the Civil Procedure Act; sub judice does not divest the court of jurisdiction but requires stay of the later-filed suit.
  • Multiplicity of suits between the same parties over the same subject matter is to be avoided in the interest of the parties and the administration of justice.

Court orders

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  1. 1.The suit herein is stayed pending the hearing and determination of CMELC Case No. 128 of 2018
  2. 2.This suit is transferred to Kisii Chief Magistrate's Court for hearing and determination
  3. 3.The costs of the Preliminary Objection shall be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Law of Succession Actsection 45
  • Environment and Land Court Actoverriding objective

Cases cited (5)

  • ASL Credit Limited v Abdi Basid Sheikh & Another
    (2019) eKLR
  • Thika Min Hydra Co. Ltd V Josphat Karu Ndwiga
    (2013) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors
    (1969) E.A 696
  • IEBC v Jane Cheberender & 2 Others
    Civil Application No. 36 of 2014
  • Nyanza Garage vs. Attorney General
    Kampala High Court Civil Suit No. 450 of 1993
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (court acting under its jurisdiction; sub-judice doctrine under section 6 of the Civil Procedure Act)

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, "Elizabeth Kemunto Ongeri v Nelson Ochora Ongwae & 5 others [2022] KEELC 882 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/882/eng@2022-03-14

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