Maurice Nasiche Kudondo (Suing as a personal representative of Francis Wasilwa Saratuki (Deceased) v Pailomena Nawanga Wasilwa & 2 others [2022] KEELC 1839 (KLR)
The bottom line
#A Kenyan land dispute court declined to strike out a duplicate case, instead pausing it until an older succession case in Bungoma is decided first.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was duplicitous / sub-judice vis-à-vis the Bungoma Succession Cause
The court found that the suit land was a matter the plaintiff raised only in 2021 by the Summons for Revocation of Grant, that the Succession Cause had been before the court since 2006, and that the common issues therefore became sub-judice in relation to that Cause; however striking out was refused and a stay ordered instead.
The court compared the plaint and the Summons for Revocation of Grant. The subject matter (Kwanza/Namanjalala Block 5/1) was common, and the parties were not identical nor litigating under the same title, so the strict conditions of Section 6 were not fully met. Yet because the issue of the land as part of the estate was raised in the Succession Cause, the court treated the common issues as sub-judice and stayed the suit rather than striking it out, transferring the file to Bungoma.
Locus standi of the plaintiff holding a limited grant ad litem
The court declined to determine the question, finding it academic in light of the stay order.
The applicants argued the plaintiff lacked locus standi as letters of administration had been issued to another person and the administratrix was not joined. The plaintiff claimed he held a limited grant ad litem specifically for this action. Having stayed the suit, the court found it an academic exercise to decide the locus standi question and left it at that.
Legal principles established
#- For the sub-judice rule under Section 6 of the Civil Procedure Act to apply, three conditions must obtain: the matter in issue must be directly and substantially in issue in a previously instituted suit, between the same parties or parties litigating under the same title, pending in the same or another court of competent jurisdiction in Kenya.
- Where sub-judice is established, the subsequent matter is stayed until the earlier suit is heard and determined, even where striking out is not warranted.
- It is imprudent for an advocate to swear an affidavit on contested facts on behalf of his client.
Court orders
#- 1.The Plaintiff's suit is stayed pending the hearing and determination of the Summons for Revocation of Grant in Bungoma High Court Succession Cause No. 18 of 2006
- 2.The suit file is transferred to the Bungoma High Court Registry to be mentioned alongside the Succession Cause file for further orders and final determination or until the Court orders otherwise
- 3.The suit to be mentioned before the Judge in Bungoma High Court on 29/3/2022 when the 'sister' file shall be mentioned, for further directions
- 4.Each party shall bear their own costs of the Application
- Jurisdiction invoked
- Sections 3A, 5, 6 and 7 of the Civil Procedure Act (Cap 24)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Nasiche Kudondo (Suing as a personal representative of Francis Wasilwa Saratuki (Deceased) v Pailomena Nawanga Wasilwa & 2 others [2022] KEELC 1839 (KLR)", Case Analysis (2022). ELC Suit (Kitale) — suit by plaint dated 15/8/2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1839/eng@2022-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.