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ELCStruck Out· [2023] KEELC 531 (KLR)

Kitaka v Mutunga (Environment & Land Case 20 of 2020) [2023] KEELC 531 (KLR)

Environment and Land Court
25 January 2023
1,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land lawsuit because an identical case over the same property was already running between the same parties.

What this practically means

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Executive summary

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The Defendant (Applicant) filed a Notice of Motion dated March 21, 2022 under Section 6 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules seeking to strike out the Plaintiff's suit, contending that a substantially similar suit, Tawa ELC Case No 7 of 2020, was pending between the same parties over the same subject matter, land parcel Mbooni/Itetani/141, and that conflicting decisions were imminent. The Plaintiff (Respondent) opposed the application, arguing the threshold for striking out was not met, that the issues in the two suits differed, and that Hon Justice Mbogo had on March 29, 2021 allowed consolidation of the two suits, which should now proceed. The court framed a single issue: whether the Plaintiff's suit offends Section 6 of the Civil Procedure Act. Examining the pleadings in both suits, the court found that the parties' positions were mirrored (the Plaintiff here is the Defendant in the Tawa suit and vice versa) and that the relief sought in the plaint was essentially identical to the Counter Claim in the earlier suit, including declarations of ownership, permanent injunctions and eviction orders concerning the same parcel. On consolidation, the court found the record showed the March 29, 2021 mention was before the Deputy Registrar, who removed the matter from the cause list for want of service, and that the parties never appeared before Hon Justice Mbogo, who made no consolidation order. Holding the suit sub judice, the court struck it out with no orders as to costs.

Key legal issues

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01

Whether the present suit is sub judice to Tawa ELC Case No 7 of 2020 under Section 6 of the Civil Procedure Act

Holding

The suit offends Section 6 and is struck out, as the parties and subject matter are the same and the orders sought in the present suit can be ventilated in the Counter Claim in the earlier suit

Reasoning

Section 6 bars a court from trying a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title. The Plaintiff in Tawa ELC No 7 of 2020 is the Defendant here and vice versa. Both suits concern land parcel Mbooni/Itetani/141, and the orders sought in the present plaint mirror those sought in the Counter Claim in the earlier suit. Conflicting decisions were a risk, so striking out was warranted.

p. 3
02

Whether the two suits had been validly consolidated by Hon Justice Mbogo on March 29, 2021 as the Defendant contended

Holding

No consolidation order was made; the record shows the parties did not appear before Hon Justice Mbogo

Reasoning

The record showed that on March 29, 2021 the matter was before the Honourable Deputy Registrar for pre-trial directions, not before Hon Justice Mbogo. The Deputy Registrar took the matter out of the cause list since there was no evidence of service on the Defendant. The Defendant's claim that consolidation had been allowed was therefore not supported by the record, and the alleged consolidation order could not defeat the sub judice objection.

p. 3

Legal principles established

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  • The sub judice rule under Section 6 of the Civil Procedure Act applies where another suit or proceeding is pending in another court relating to the same parties or their privies over the same subject matter

Court orders

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  1. 1.The suit, being sub judice to Tawa ELC Case No 7 of 2020, is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (1)

  • Anna Cherop Vs Municipal Council of Eldoret and 2 Others
Jurisdiction invoked
Section 6 of the Civil Procedure Act and Order 51 Rule 1 of the 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, "Kitaka v Mutunga (Environment & Land Case 20 of 2020) [2023] KEELC 531 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/531/eng@2023-01-25

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