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ELCOtherPetition (Nyeri ELC) – Notice of Motion dated 28th May, 2021 within the Petition· [2022] KEELC 1935 (KLR)

Losesia Group Ranch v Kamanga Holdings Limited & 43 others [2022] KEELC 1935 (KLR)

Environment and Land Court
27 January 2022
JOJ. O. Olola
3,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court stopped a group ranch's petition because the same land dispute was already being handled in an earlier, still-pending appeal.

What this practically means

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Executive summary

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By a Notice of Motion dated 28th May 2021, Losesia Group Ranch sought prohibition and conservatory orders restraining alienation, charging, transfer, fencing or waste of land parcels Samburu/East Waso/2 to 43, pending determination of a Petition challenging the alienation of community trust land. The application was opposed by the 1st Respondent, Kamanga Holdings Limited, the 2nd to 40th Respondents, the estate of the 30th Respondent, and the Land Adjudication Officer, Samburu East. The 30th Respondent filed a Notice of Preliminary Objection dated 17th August 2021 raising res sub-judice, abuse of process, lack of the Petitioner's legal capacity, and failure to exhaust statutory dispute resolution mechanisms under the Land Adjudication Act. The court, with the parties' agreement, disposed of both the application and the objection by written submissions. Relying on Section 6 of the Civil Procedure Act and authority from the High Court and Supreme Court, the court held that the Petition's subject matter was directly and substantially the same as that in Nyeri ELC Case No. 74 of 2016 (OS), which was struck out and is the subject of pending Nyeri Civil Appeal No. 130 of 2018. Although the Group Ranch itself was not a party to the earlier suit, three of its members instituted it as its representatives, as the Petition itself pleaded. The court found the Petition res sub-judice and declined to determine the other grounds of the objection. The Preliminary Objection succeeded to that extent; the Petition was stayed pending the appeal, and costs of the application were awarded to the Respondents against the Petitioner.

Key legal issues

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01

Whether the Petition is res sub-judice

Holding

Yes. The subject matter of the Petition is directly and substantially the same as that in Nyeri ELC Case No. 74 of 2016 (OS), whose appeal, Nyeri Civil Appeal No. 130 of 2018, is pending. The three Applicants in the earlier suit acted as representatives of the Petitioner.

Reasoning

The court compared the prayers in the Petition with the questions raised in the earlier Originating Summons and found them concerned with the same subject matter. Though the Group Ranch itself was not a party to the earlier suit, the three individuals who instituted it were members of the Petitioner and acted as its representatives, a fact pleaded in the Petition itself. Both suits question the lawfulness and constitutionality of the same alienations under the Land Adjudication Act and Article 63.

p. 6
02

Whether the Petition and application should be stayed

Holding

Yes. The Petition stands stayed pending determination of the pending appeal.

Reasoning

Having found the Petition res sub-judice under Section 6 of the Civil Procedure Act, the court declined to delve into the other grounds of the Preliminary Objection (abuse of process, legal capacity, exhaustion) as unnecessary, and stayed the Petition rather than striking it out.

p. 6

Legal principles established

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  • Where two or more suits between the same parties over the same subject matter are pending, the later-filed suit should be stayed to await the earlier one
  • The sub-judice rule aims to prevent multiplicity of suits, abuse of process, and conflicting decisions by courts of competent jurisdiction

Court orders

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  1. 1.The Preliminary Objection succeeds to the extent that the Petition is res sub-judice
  2. 2.The Petition stands stayed pending determination of Nyeri Civil Appeal No. 130 of 2018
  3. 3.The costs of the application to be borne by the Petitioner

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Land (Group Representatives) Act Cap 287
  • Community Land Act
  • Land Adjudication Act
  • Constitution of KenyaArticle 63
  • Rules of the Court of AppealRule 5(2)(b)

Cases cited (2)

  • Republic -vs- Paul Kihara & 3 Others Ex-parte Law Society of Kenya
    (2020) eKLR
  • Kenya National Commission on Human Rights -vs- The Attorney General and 17 Others
    (2020) eKLR
Jurisdiction invoked
Article 63 of the Constitution of Kenya (as invoked in the Petition); court disposed of the application and Preliminary Objection under its inherent powers

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, "Losesia Group Ranch v Kamanga Holdings Limited & 43 others [2022] KEELC 1935 (KLR)", Case Analysis (2022). Petition (Nyeri ELC) – Notice of Motion dated 28th May, 2021 within the Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1935/eng@2022-01-27

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