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ELCDismissedNot stated in the judgment (Notice of Motion dated 15.2.2021)· [2022] KEELC 1719 (KLR)

John Kiprotich Saina v Barnaba Kipkemboi Saina [2022] KEELC 1719 (KLR)

Environment and Land Court
31 January 2022
967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a duplicate land suit, confirming that filing a second case over the same property while another is pending is forbidden forum shopping.

What this practically means

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Executive summary

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The Defendant/Applicant moved the Environment and Land Court at Kapsabet by Notice of Motion dated 15.2.2021 seeking striking out of the suit as an abuse of the court process or, in the alternative, a stay of proceedings pending hearing of Kapsabet Senior Principal Magistrates Court Land Case No. 73 of 2019, brought under Section 6 of the Civil Procedure Act. The Plaintiff/Respondent obtained leave to file a replying affidavit but never did, nor did he file submissions, and the application was deemed unopposed. The court nonetheless determined the motion on its merits. It found that both suits concerned parcel Nandi/Ndulele/985, involved the same parties, and sought substantially similar declaratory and injunctive relief, with the Kapsabet suit filed earlier on 12.9.2019. Applying Section 6 and the principles in Thiba Min Hydro Ltd v Josphat Karu Ndwiga, the court held that substance, not form, governs sub judice and that parallel litigation was unjustified. It further found the plaintiff had sworn a verifying affidavit denying any pending suit on the same subject, which amounted to forum shopping and abuse of process. The application was granted and the suit dismissed with costs to the Defendant. Judgment delivered on 31 January 2022 by M.N. Mwanyale J.

Key legal issues

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01

Sub judice under Section 6 of the Civil Procedure Act

Holding

The suit is sub judice as the parties, reliefs and subject matter (Nandi/Ndulele/985) are the same as in the pending Kapsabet SPMC Land Case No. 73 of 2019.

Reasoning

The court applied Section 6 of the Civil Procedure Act, noting the same parties were litigating under the same title over the same parcel of land in a court with jurisdiction to grant the relief claimed. Relying on Thiba Min Hydro Ltd v Josphat Karu Ndwiga, the court looked to the substance rather than the form of the suits and found them substantially identical, with no justification for parallel hearings.

p. 2
02

Abuse of court process / forum shopping

Holding

The suit is an abuse of the court process; the plaintiff had sworn a verifying affidavit denying any pending suit between the parties while a related suit was on record.

Reasoning

The plaintiff averred in paragraph 11 of the plaint that no proceedings were pending between him and the defendant concerning the same subject, yet he had instituted another suit over the same land whose injunction application had been dismissed. The court held this denial, coupled with parallel litigation over the same subject matter, constituted forum shopping and an abuse of process justifying dismissal.

p. 2
03

Treatment of an unopposed application

Holding

Although the application was unopposed, the court considered it on its merits in light of the applicant's elaborate submissions.

Reasoning

No replying affidavit, grounds of opposition or submissions were filed by the respondent despite leave to file a replying affidavit. The court nonetheless declined to decide the motion merely on the basis that it was unopposed, electing instead to consider it on its merits because the applicant had filed detailed submissions. This reflects the court's duty to satisfy itself on the law even in unopposed matters.

p. 1

Legal principles established

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  • It is the substance of a suit, not the form in which it is framed, that determines whether it is sub judice.
  • Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly in issue in a previously instituted suit between the same parties litigating under the same title.
  • Filing a second suit over the same subject while another is pending, and denying the pendency in a verifying affidavit, amounts to forum shopping and abuse of court process.

Court orders

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  1. 1.The application is granted
  2. 2.The suit is dismissed with costs to the Defendant
  3. 3.Costs of the application to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (2)

  • Republic vs Paul Kihara Kariuki, Attorney General and 2 Others Exparte Law Society of Kenya
    [2020] eKLR
  • Thiba Min Hydro Ltd vs Josphat Karu Ndwiga
Jurisdiction invoked
Section 6 of the Civil Procedure Act (sub judice); struck out for abuse of court process

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "John Kiprotich Saina v Barnaba Kipkemboi Saina [2022] KEELC 1719 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 15.2.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1719/eng@2022-01-31

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