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ELCPartially AllowedMalindi ELC Case (suit filed by plaint dated November 1, 2021)· [2022] KEELC 3146 (KLR)

Ogola v Peter (Environment & Land Case 90 of 2021) [2022] KEELC 3146 (KLR)

Environment and Land Court
10 June 2022
2,559 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 struck out a duplicate land suit, confirming you cannot file a second case over the same property while an earlier one is pending.

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 a notice of application dated November 15, 2021 by the defendant, Mary Syevutha Peter, seeking striking out of a suit filed by the plaintiff, Pamela Auma Ogola, by plaint dated November 1, 2021, as scandalous, frivolous, vexatious and an abuse of court process. The applicant contended that the suit was res sub judice Malindi ELC Case No. 2 of 2021 (formerly Malindi CMCC ELC Case No. 34 of 2020), in which the defendant here was plaintiff and the plaintiff here the 5th defendant, both suits concerning LR. No. 8897 registered under Title No. CR. 25828, also known as Prestige Holiday Resort. She relied on the Supreme Court decision in KNCHR v Attorney General [2020] eKLR setting out the elements of sub judice, and on Barclays Bank of Kenya Ltd v Elizabeth Agidza. The plaintiff opposed, asserting she was irregularly joined in ELC No. 2 of 2021, that limitation was approaching, and that her claim was specific to ¼ acre occupied by Prestige Holiday Resort; she urged consolidation instead. The court framed one issue: whether the suit was sub judice ELC No. 2 of 2021 and, if so, whether it should be struck out. Applying section 6 of the Civil Procedure Act and the authorities, the court found both parties litigating over the same subject matter in the earlier suit, held the later filing was forum shopping and an abuse of process, declined consolidation as unnecessary since both parties were already before the court in ELC No. 2 of 2021, and struck out the suit with costs on June 10, 2022.

Key legal issues

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01

Whether the suit is res sub judice Malindi ELC Case No. 2 of 2021 under section 6 of the Civil Procedure Act

Holding

The suit is sub judice. Both the plaintiff and the defendant are parties to ELC No. 2 of 2021 over the same subject matter, LR. No. 8897 (CR. 25828), and that suit was instituted earlier, on June 3, 2020, before this suit filed on November 9, 2021.

Reasoning

Applying section 6 of the Civil Procedure Act and the Supreme Court's formulation in KNCHR v Attorney General, the court found all four elements satisfied: more than one suit over the same subject matter, one instituted before the other, both pending before courts of competent jurisdiction, and the same parties. The plaintiff admitted the subject matter was the same but wished to avoid litigating with other parties; her issues could be ventilated by a counterclaim in ELC No. 2 of 2021.

p. 5
02

Whether filing the later suit amounts to an abuse of court process warranting striking out

Holding

Yes. Multiplicity of suits over the same subject matter is forum shopping and an abuse of the court process; the suit was struck out with costs.

Reasoning

The court held that multiplicity of suits between the same parties over the same subject matter wastes judicial time and resources and risks conflicting outcomes, amounting to forum shopping. The plaintiff filed the suit aware of the pending ELC No. 2 of 2021, so striking out was the appropriate remedy rather than consolidation, since both parties are already before the court in the earlier suit.

p. 5

Legal principles established

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  • Where a matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or their representatives litigating under the same title, pending before a court of competent jurisdiction, the later suit must not proceed

Court orders

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  1. 1.The suit filed by the plaint dated November 1, 2021 is struck out as sub judice ELC No. 2 of 2021 and an abuse of court process
  2. 2.Costs of the suit and of the application awarded to the defendant

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (3)

  • Kenya National Commission on Human Rights v The Attorney General & another
    [2020] eKLR
  • Barclays Bank of Kenya Ltd vs Elizabeth Agidza & 2 others
    (2012) eKLR
  • Nyanza Garage vs. Attorney General
    Kampala High Court Civil Suit No. 450 of 1993
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application under Civil Procedure Act (sections 1A, 1B, 3A, 6) and Civil Procedure Rules

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, "Ogola v Peter (Environment & Land Case 90 of 2021) [2022] KEELC 3146 (KLR)", Case Analysis (2022). Malindi ELC Case (suit filed by plaint dated November 1, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3146/eng@2022-06-10

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