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ELCStruck OutMalindi ELC Case of 2018 (undifferentiated number on record)· [2022] KEELC 3710 (KLR)

Menza & 2 others v Koi & 2 others (Environment and Land Case Civil Suit 159 of 2018) [2022] KEELC 3710 (KLR)

Environment and Land Court
11 May 2022
MOM A Odeny
1,672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Malindi court threw out a land dispute filed while two earlier cases over the same Mibuyu Saba plots were still pending, warning against forum shopping.

What this practically means

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Executive summary

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The plaintiffs, officials of Mibuyu Saba 2nd, 3rd rows and adjacent areas Squatter Formalization Scheme in Kilifi, sued the defendants seeking a declaration that they have the right to deal with parcels in the scheme and a permanent injunction restraining the defendants from occupying, dealing with or transferring those parcels. The plaintiffs alleged the defendants were trespassing by purporting to sign transfers as officials of an unregistered self-help group. The defendants denied the plaintiffs' standing in the community, asserted their own registration under the Ministry of Social Services, and objected that the dispute was sub judice given two pending suits: Kilifi PMCC 170 of 2009 and Malindi ELC 247 of 2016, involving the same parties and subject matter. The court addressed the sub judice objection first. Relying on section 6 of the Civil Procedure Act and the ex parte Law Society of Kenya decision, and following the Murang'a County Government case, the court found that the main issue in this suit - who is entitled to spearhead allocation of plots in the Mibuyu Saba area - was directly and substantially in issue in the pending suits, and that the substance rather than the form of the suits controls. Holding the suit sub judice and an abuse of court process amounting to forum shopping, the court struck out the suit and ordered each party to bear their own costs, leaving the parties free to pursue the pending suits.

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 and an abuse of court process and was struck out

Reasoning

The court found on the evidence that both sides acknowledged pending suits - Kilifi PMCC 170 of 2009 and Malindi ELC 247 of 2016 - involving the same parties and substantially the same issue, namely who is entitled to spearhead allocation of plots in the Mibuyu Saba area. Applying section 6 of the Civil Procedure Act and Mativo J's exposition on sub judice and abuse of process, the court held the substance of the suits identical, that parties should not forum shop, and struck out the suit.

p. 4

Legal principles established

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  • A court must decline to try a suit whose matter is directly and substantially in issue in a previously instituted suit between the same parties still pending
  • It is the substance, not the form, of a suit that determines whether it is sub judice

Court orders

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  1. 1.The suit is struck out as an abuse of court process
  2. 2.Each party to bear their own 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
  • Murang'a County Government v Murang'a South Water & Sanitation Co Ltd & another
    [2019] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; Civil Procedure Act section 6 (sub judice) 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, "Menza & 2 others v Koi & 2 others (Environment and Land Case Civil Suit 159 of 2018) [2022] KEELC 3710 (KLR)", Case Analysis (2022). Malindi ELC Case of 2018 (undifferentiated number on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3710/eng@2022-05-11

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