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ELCStruck OutMalindi Environment and Land Case (as printed in judgment; suit number not stated)· [2022] KEELC 2336 (KLR)

Kache v Lewa & 3 others (Environment & Land Case E027 of 2021) [2022] KEELC 2336 (KLR)

Environment and Land Court
12 July 2022
MOM.A. Odeny
1,418 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined two interlocutory applications: a notice of motion by the 3rd defendant/respondent seeking a stay of proceedings and striking out of the plaintiff's suit as sub judice, scandalous, frivolous, vexatious and an abuse of court process, and a motion by the plaintiff seeking consolidation of the suit with Malindi ELC No. 195 of 2018 (Ruth Kabibi Kombe v White Unicorn Ltd & Kilifi Land Registrar). Counsel filed written submissions. The 3rd defendant argued, relying on section 6 of the Civil Procedure Act and Republic v Paul Kihara Kariuki ex parte Law Society of Kenya, that the present suit duplicated the earlier pending suit between the same parties and their representatives. The plaintiff admitted having filed ELC No. 195 of 2018, still pending, involving the same subject matter and parties apart from an additional defendant, and sought consolidation. The court framed two issues: whether the suit was sub judice and an abuse of process, and whether consolidation was appropriate. Applying section 6 and the test in Kenya National Commission on Human Rights v Attorney General, the court found the suit sub judice. Relying on the Law Society of Kenya decision, it held that consolidation cannot be used to evade the sub judice rule. The court allowed the 3rd defendant's application, struck out the plaintiff's suit with costs, and dismissed the consolidation application with costs.

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 sub judice: the same subject matter and parties (bar an additional defendant) are in issue in the previously instituted ELC No. 195 of 2018, which remains pending.

Reasoning

The court applied section 6 of the Civil Procedure Act and the test in Kenya National Commission on Human Rights v AG: more than one suit over the same subject matter, one instituted before the other, both pending before competent courts, and the same parties or their representatives. The plaintiff admitted filing ELC No. 195 of 2018, which is still pending and involves the same subject matter and parties apart from an additional defendant.

p. 3
02

Whether consolidation of the two suits is permissible

Holding

Consolidation was refused because it would be an abuse of process deployed to evade the sub judice rule.

Reasoning

Following Republic v Paul Kihara Kariuki ex parte Law Society of Kenya, the court held that consolidation cannot cure sub judice. Permitting consolidation of a suit already caught by the sub judice doctrine, especially while an application invoking that doctrine is pending, would itself constitute an abuse of court process.

p. 3

Legal principles established

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  • Consolidation cannot be used to circumvent the sub judice doctrine or abuse of court process

Court orders

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  1. 1.The 3rd defendant/applicant's application dated 25th November 2021 is allowed as prayed
  2. 2.The plaintiff's suit is struck out with costs
  3. 3.The plaintiff's application dated 18th January 2022 for consolidation of the two suits is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure RulesOrder 21 [1]

Cases cited (2)

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • Kenya National Commission On Human Rights – Vs – Attorney General, I.E.B.C., & 16 Others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied by the court's nature); the ruling applies section 6 of the Civil Procedure Act

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, "Kache v Lewa & 3 others (Environment & Land Case E027 of 2021) [2022] KEELC 2336 (KLR)", Case Analysis (2022). Malindi Environment and Land Case (as printed in judgment; suit number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2336/eng@2022-07-12

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