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ELCStruck OutELC No 147 of 2020· [2022] KEELC 2189 (KLR)

Silanga Park Limited v Helicopter of Christ Church & 3 others ((sued in their capacity as the Chairman, Secretary and Treasurer of Helicopter of Christ Church)) (Environment & Land Case E147 of 2020) [2022] KEELC 2189 (KLR)

Environment and Land Court
27 April 2022
LMLucy N. Mbugua
1,642 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's suit because the same dispute was already before another court — you cannot run parallel cases over one property.

What this practically means

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Executive summary

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The Plaintiff, Silanga Park Limited, moved the Environment and Land Court in Nairobi by notice of motion dated September 25, 2020 seeking temporary injunctions restraining the Defendants from interfering with, building on, or dealing with parcel LR 209/21602 (original number 209/11849) in Langata Estate, and orders for demolition of structures erected on the land. The Plaintiff claimed to be the registered lessee from the Nairobi County Government and alleged the Defendants, a church, trespassed in 2018 under a fraudulent temporary occupation licence. The Defendants opposed through grounds of opposition and a preliminary objection dated February 12, 2021, citing parallel litigation: CMCC No. 8808 of 2018 and ELC No. E031 of 2020 involving the same parties and subject matter, and asserting the church had occupied the land since 2002 under a licence. The court held that the company and its director, Francis Nyamai Mwanzia, who swore the supporting affidavit, were litigating on different platforms over the same property, mirroring Judge Eboso's earlier observation. Applying the Law Society of Kenya decision on abuse of process, the court found the suit constituted abuse of court process. Invoking its constitutional mandate for expeditious hearings, the court struck out both the application and the entire suit with no orders as to costs, directed that the ownership claim proceed in the earlier-filed ELC E031 of 2020, ordered amendment of that plaint to cure the church's lack of legal capacity and substitute parties within 21 days, failing which that suit would stand dismissed.

Key legal issues

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01

Abuse of court process through multiplicity of suits

Holding

The Plaintiff, through its director Francis Nyamai Mwanzia, was litigating on different platforms in relation to the same suit property, amounting to abuse of court process.

Reasoning

Relying on the LSK case and noting Judge Eboso's earlier observation of 1.3.2021, the court found that the same person, Francis Nyamai Mwanzia, was driving both suits - one in his personal name and one through the company - over the same property. Litigation is not a game of chess; parallel suits over the same subject matter waste judicial resources and constitute an abuse of process warranting striking out.

p. 4
02

Efficient case management and expeditious hearing of cases

Holding

The court has a constitutional mandate to ensure cases are heard expeditiously and should consolidate parallel claims rather than permit them to run concurrently.

Reasoning

The court invoked its own prior ruling in Lawrence Kinyua Mwai v Nyariginu Farmers Co. Ltd, and Order 10 rule (2) of the Civil Procedure Rules, directing that the ownership claim be advanced in the earlier-filed ELC E031 of 2020 rather than maintaining two parallel suits in the same court.

p. 4
03

Legal capacity of the church to sue or be sued

Holding

The court observed that the church had not properly sued or been sued in either suit because it lacks legal capacity.

Reasoning

In giving directions, the court took into account that in both E147 of 2020 and E031 of 2020 the church had not properly been made a party, having no legal capacity to sue or be sued, and therefore ordered amendment of the plaint in ELC E031 of 2020 to substitute parties with legal capacity.

p. 4

Legal principles established

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  • Pursuing two parallel suits over the same subject matter by the same party constitutes abuse of court process

Court orders

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  1. 1.The application dated 25.9.2020 and the entire suit No ELC. 147/2020 are struck out with no orders as to costs
  2. 2.The Plaintiff in ELC E031/2020 to file an amended plaint to remove the church and bring the suit in the name of persons with legal capacity to sue
  3. 3.Silanga Park Limited to be added as 1st Defendant in ELC E031/2020 with the other Defendants refiled as 2nd - 6th Defendants
  4. 4.The Amended Plaint to be filed and served within 21 days from the date of delivery of the ruling, failing which suit ELC.031/2020 shall stand as dismissed and Silanga Park Limited at liberty to bring a fresh suit
  5. 5.A copy of the ruling to be extracted and placed in File No ELC 031 of 2020
  6. 6.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure RulesOrder 10 rule (2)

Cases cited (2)

  • Republic v Paul Kihara Kariuki, Attorney general & 2 others exparte Law Society of Kenya
    [2020] eKLR
  • Lawrence Kinyua Mwai v Nyariginu Farmers Co. Ltd & another
    [2019] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court jurisdiction) - implied; Civil Procedure Act and Rules invoked

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, "Silanga Park Limited v Helicopter of Christ Church & 3 others ((sued in their capacity as the Chairman, Secretary and Treasurer of Helicopter of Christ Church)) (Environment & Land Case E147 of 2020) [2022] KEELC 2189 (KLR)", Case Analysis (2022). ELC No 147 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2189/eng@2022-04-27

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