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ELCDismissedMachakos ELC 077 of 2021· [2022] KEELC 1940 (KLR)

Samuel Musau Kioko & 3 others v Lukenya Ranching & Farming Co-Operative Society Limited & 5 others; John Robert Mutiso & 25 others (Interested Parties) [2022] KEELC 1940 (KLR)

Environment and Land Court
25 January 2022
3,125 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 Machakos court refused to strike out a family's land ownership suit, ruling that a related trespass case did not bar it, and consolidated both disputes for faster resolution.

What this practically means

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Executive summary

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The Environment and Land Court at Machakos (Christine Ochieng, J) determined two applications: the 2nd, 3rd and 5th Defendants' Notice of Motion dated 17th September 2021 seeking striking out of the Plaintiffs' suit, and the 4th Defendant's Notice of Motion dated 5th October 2021 seeking striking out or, in the alternative, stay pending Machakos ELC Case No. 41 of 2013. The Defendants argued that the dispute over Mavoko Town Block 3/2038 was directly and substantially in issue in the earlier, previously instituted suit, in which the Plaintiffs had been joined as Interested Parties, and that the present suit was sub judice and an abuse of process. The Plaintiffs, suing as administrators of the estate of their late father Kioko Mulata, countered that they were mere Interested Parties in the earlier suit, which concerned trespass, while the present suit challenges the root of title, and additional parties including purchasers and the Land Registrar had been joined. Framing two issues - sub judice/striking out and consolidation - the court applied Section 6 of the Civil Procedure Act and the test that the matter in issue must be directly and substantially in issue in the previously instituted suit such that a final decision would operate as res judicata. The court found that the earlier suit is a trespass claim whereas the instant suit focuses on the root of title, with additional parties and reliefs, and therefore the suit was neither sub judice nor an abuse of process. Both applications were dismissed. Noting the suits are related and the property has been subdivided to purchasers, the court ordered consolidation of Machakos ELC Case No. 41 of 2013 with Machakos ELC 077 of 2021 for hearing and final determination, directed fixation for pre-trial directions, and ordered costs in the cause.

Key legal issues

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01

Whether the suit is sub judice under Section 6 of the Civil Procedure Act

Holding

The suit is not sub judice because the parties and issues differ - the instant suit questions the root of title and is brought by administrators, while the earlier suit is for trespass

Reasoning

The court compared the two suits. The previous suit is a trespass claim by the 4th Defendant as purchaser; the instant suit seeks a declaration of ownership for the estate of the Plaintiffs' father and cancellation of titles. Additional parties were joined and the suit property has been subdivided. Mere addition of parties does not control, but here the issues raised in the instant suit were not in the previous suit.

p. 5
02

Whether the suit is an abuse of the court process warranting striking out

Holding

It is not an abuse of process; striking out was declined following Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira & 2 Others

Reasoning

The court found the claims related rather than duplicative. Striking out a suit is a drastic remedy exercised cautiously; since the Plaintiffs had genuine issues on the root of title and additional parties and reliefs, the court declined to strike out and instead consolidated the matters.

p. 5
03

Whether the two suits should be consolidated

Holding

Yes - consolidation was ordered for expeditious disposal given the related subject matter and subdivision of the suit property

Reasoning

The court reasoned that the suits are related and the suit property has been subdivided and disposed to different purchasers, making consolidation the most efficient course. It ordered consolidation and directed pre-trial directions.

p. 5

Legal principles established

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  • The test for the sub judice rule under Section 6 of the Civil Procedure Act is whether a final decision in the previously instituted suit would operate as res judicata in the subsequent suit
  • A suit differing in parties, capacity and issues from a pending suit is not sub judice even where related

Court orders

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  1. 1.The Notice of Motion applications dated 17th September, 2021 and 5th October, 2021 are disallowed as unmerited.
  2. 2.Machakos ELC Case No. 41 of 2013 and Machakos ELC 077 of 2021 are consolidated for hearing and final determination.
  3. 3.The consolidated matters be fixed for pre trial directions.
  4. 4.Costs will be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (13)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties), Advisory Opinion Reference No. 1 of 2017
  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    (2020) eKLR
  • Barclays Bank of Kenya Ltd v Elizabeth Agidza & 2 others
    (2012) eKLR
  • Law Society of Kenya v The Centre for Human Rights and Democracy & 12 Others
    (2014) eKLR
  • Republic v Registrar of Societies Kenya & 2 Others Ex parte Moses Kirima & 2 Others
    (2017) eKLR
  • Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga
    (2013) eKLR
  • Kiama Wangai v John Mugambi & Another
    (2012) eKLR
  • Anthony Muthumbi Wachira v Kenya Airports Authority
    Cause No. 1590 of 2010
  • Kenline Agencies Limited v Barclays Bank of Kenya Limited
    Nairobi HCC No. 94 of 2003
  • Alcop Limited v Mako Ali & 2 Others
    (2017) eKLR
  • Peeraj General Trading & Contracting Company Limited & Another v Mumias Sugar Company Limited
    (2016) eKLR
  • Dickson Maina v Kenya Electricity Generating Company Limited & Another
    (2021) eKLR
  • Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act (sub judice rule); inherent powers on case management and consolidation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Samuel Musau Kioko & 3 others v Lukenya Ranching & Farming Co-Operative Society Limited & 5 others; John Robert Mutiso & 25 others (Interested Parties) [2022] KEELC 1940 (KLR)", Case Analysis (2022). Machakos ELC 077 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1940/eng@2022-01-25

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