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ELCStruck Out· [2022] KEELC 2684 (KLR)

Kiplagat & another v Longori & 3 others (Environment & Land Case E001 of 2022) [2022] KEELC 2684 (KLR)

Environment and Land Court
7 July 2022
EOE. OBAGA
1,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court stayed a duplicate land suit, confirming that later-filed cases over the same property must wait for earlier ones to conclude.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a preliminary objection by the 2nd Defendant that the suit is sub-judice and an abuse of process because a suit over the same subject matter, CM E&L E001 of 2022 (Sarah Aregae Lopeyok v Jacob K. Kiplagat and Salome Ewoi), is pending before the Chief Magistrate's Court at Eldoret. Both suits concern Uasin Gishu/Kuinet Settlement Scheme/84. In the magistrates' court suit, the Plaintiffs here are Defendants facing a claim for eviction; in the present suit they seek cancellation of the title held by the 2nd Defendant, alleging fraudulent transfer by the 1st Defendant after they had purchased 4 acres and 2 acres respectively. Applying section 6 of the Civil Procedure Act and the conditions set out in the Kirima and KNCHR decisions, the court found the subject matter identical, the earlier suit instituted first, the parties substantially the same (the additional 1st, 3rd and 4th Defendants not altering the substance), and the magistrates' court competent to grant the relief claimed, which the Plaintiffs could pursue by counterclaim. The Plaintiffs' argument that the earlier suit had been stayed did not assist them. The court held the suit sub-judice and stayed it pending the hearing and determination of Eldoret CMC E&L E001 of 2022, with costs of the application awarded to the 2nd Defendant.

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 subject matter, Uasin Gishu/Kuinet Settlement Scheme/84, is directly and substantially in issue in an earlier suit between substantially the same parties before the Chief Magistrate's Court, which can grant the relief claimed by way of counterclaim

Reasoning

The court applied section 6 of the Civil Procedure Act and the tests in Republic v Registrar of Societies and the Supreme Court in KNCHR v AG. The subject matter in both suits is the same parcel of land. The earlier suit (CMC E&L E001 of 2022) was filed first, between substantially the same parties litigating under the same title. The addition of the 1st, 3rd and 4th Defendants does not alter the substance. The Chief Magistrate's Court is competent to grant the relief sought, which the Plaintiffs may pursue by counterclaim. The stay obtained in the earlier suit does not permit this court to proceed.

p. 3
02

Whether a stay obtained in the earlier suit allows this court to proceed

Holding

No - the fact that the earlier suit was stayed at the Plaintiffs' instance does not give this court leeway to deal with the matter

Reasoning

The court held that the stay in the earlier suit, even if obtained at the instance of the Plaintiffs in the present suit, does not excuse the filing of a multiplicity of suits. Parties must litigate the whole dispute in one suit; multiplicity of suits clogs the wheels of justice.

p. 3

Legal principles established

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  • Where two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the later-filed suit ought to be stayed pending determination of the earlier suit
  • A party seeking a remedy against an adverse party in a pending suit should seek it by counterclaim in that suit rather than filing a separate suit

Court orders

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  1. 1.The present suit be stayed pending the hearing and determination of Eldoret CMC E&L E001 of 2022
  2. 2.The Plaintiffs shall pay the costs of the application to the 2nd Defendant

Authorities

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Legislation

  • Civil Procedure Actsection 6

Cases cited (3)

  • Republic vs Registrar of Societies -Kenya & 2 others Ex-parte Moses Kirima & 2 others
    (2017) eKLR
  • Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (interested parties)
    (2020) eKLR
  • Nyanza Garage vs Attorney General

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, "Kiplagat & another v Longori & 3 others (Environment & Land Case E001 of 2022) [2022] KEELC 2684 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2684/eng@2022-07-07

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