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ELCAllowed· [2022] KEELC 1362 (KLR)

Benson Mathu Wakaba & 2 others v Doris Kigetu Maingi [2022] KEELC 1362 (KLR)

Environment and Land Court
17 February 2022
KBK. Bor
1,756 words in judgment
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The bottom line

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A Kenyan court paused a land dispute until a separate succession case in Nairobi decides who rightfully owns the property.

What this practically means

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Executive summary

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The Defendant, who claims to be the wife of Sedekiel Simon Minja and asserts continued possession of land reference number 2787/919 Nanyuki Municipality, applied under Section 6 of the Civil Procedure Act for a stay of the Plaintiffs' eviction suit pending determination of her application to revoke an amended grant in Nairobi High Court Succession Cause No. 3302 of 2005. The Plaintiffs, administrators of the Estate of the late Stephen Muchoki Benson (in whose name the suit property is registered), opposed, arguing the reliefs differed, the EC alone had jurisdiction to cancel the registration, the Defendant lacked locus standi in the succession cause, and she had delayed in prosecuting her revocation application. The court found the Defendant indolent: the revocation application filed in 2017 had not been prosecuted, and her explanations (a missing file, Covid-19, change of advocates) were unsupported. However, it determined the application on its merits in the interest of justice. It held that the suit property is the main subject of the revocation application; if the amended grant is not revoked, the property will be distributed under the confirmed grant and there will be nothing to try. The court allowed the application, staying these proceedings until the revocation application is determined, with the stay limited to one year, and costs in the cause. Delivered virtually at Nanyuki on 17 February 2022 by K. Bor, Judge.

Key legal issues

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01

Inordinate delay by the applicant in prosecuting the previously instituted proceeding

Holding

The court found the Defendant indolent and her delay inordinate, but still proceeded to determine the application on its merits in the interest of justice.

Reasoning

The Defendant filed her revocation application in 2017 but did not prosecute it. Her explanations - a missing court file in Nairobi, the Covid-19 pandemic, and a change of advocates - were unsupported by evidence. The court noted Covid-19 struck in mid-2020 and virtual hearings continued; and even where different advocates are instructed, the client remains responsible for keeping them informed across related proceedings.

p. 2
02

Whether the outcome of the succession cause will affect the outcome of this suit

Holding

Yes. The suit property is the main subject of the application for revocation of the amended grant, so the High Court's determination must come first.

Reasoning

The suit land is the subject of the revocation application in Nairobi Succession Cause No. 3302 of 2005. If the Defendant fails to revoke the amended grant, the property will be distributed under the confirmed grant and there will be nothing left to try in this suit. The court therefore found that a stay pending the succession cause determination serves the interest of justice, though time-limited to one year.

p. 2

Legal principles established

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  • The power to stay proceedings ought to be exercised sparingly and only in exceptional cases.
  • Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted proceeding between the same parties.

Court orders

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  1. 1.Stay of these proceedings until the application for revocation of the grant dated 7/6/2017 is determined in Nairobi High Court Succession Cause No. 3302 of 2005
  2. 2.The stay order to be in force for one year
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (2)

  • Mits Electrical Company Ltd v Mitsubishi Electric Corporation
    [2018] eKLR
  • In the matter of the Estate of John Kiptum Bartilol v Ednah Kangogo
    [2021] eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act (stay of proceedings pending determination of a previously instituted suit); original jurisdiction of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Benson Mathu Wakaba & 2 others v Doris Kigetu Maingi [2022] KEELC 1362 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1362/eng@2022-02-17

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