Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition 38 of 2021· [2023] KEELC 17333 (KLR)

Mikaal Limited v Land Registrar Kilifi County & 2 others

Environment and Land Court
3 May 2023
6,313 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a landowner's injunction application because the same dispute was already before another court between the same parties.

What this practically means

#

Executive summary

#
Mikaal Limited, the registered lessee of Plot No Chembe/Kibabamshe/376 at Watamu, moved the Environment and Land Court at Malindi by application dated December 22, 2022 seeking to restrain the respondents from dealing with the property pending determination of its petition, and to stay proceedings in Malindi ELC No 42 of 2021 (Mikaal Limited v Dawagi Investments Limited). The petitioner asserted a 99-year lease from 1996, alleged that the Land Registrar cancelled its predecessor's title in March 2015 without notice and registered the 3rd respondent, and relied on the nemo dat doctrine, first-in-time title principles and Article 40 protections. The 3rd respondent opposed, contending the application was sub judice, res judicata and an abuse of process, since an identical injunction application in ELC No 42 of 2021 had been heard and dismissed by Olola J on 28 July 2022, and the petitioner had previously litigated over the same property in consolidated petitions. The 1st and 2nd respondents did not participate. Makori J framed two issues: whether the application was sub judice and whether injunction orders could issue. Perusing the prior ruling, the court found the parties and subject matter identical, the former suit still pending and active, and no explanation for its abandonment. Holding that proceeding would contravene the sub judice rule and that res judicata had arisen because the injunction question was already decided, the court declined to consider the Giella v Cassman Brown criteria, 'downed tools' and dismissed the application dated December 22, 2022 with costs.

Key legal issues

#
01

Whether the application is sub judice under Section 6 of the Civil Procedure Act

Holding

Yes. The parties and subject matter are the same as in the pending Malindi ELC No 42 of 2021, in which a similar injunction application was heard and dismissed by Olola J on 28 July 2022; the petitioner gave no reason for abandoning the former suit

Reasoning

The court perused the ruling in ELC No 42 of 2021 and found the parties and subject matter identical. The petitioner had only added the Registrar and the Attorney General and framed the dispute as a constitutional petition. The former suit remained pending and active, and no explanation was offered for filing a fresh petition over the same subject matter, engaging the sub judice bar.

p. 11
02

Whether res judicata applies to the injunction relief sought

Holding

Yes. The injunction question was already decided in the former suit, so the court declined to consider the merits of the Giella v Cassman Brown criteria

Reasoning

Olola J had already considered the petitioner's claim of occupation, traced the root of the parties' titles, applied Nguruman Limited v Jan Bonde Nielsen and dismissed the Motion dated May 11, 2021 seeking similar injunctive orders. Re-opening the same question in this petition would duplicate or conflict with that ruling, so the court 'downed tools'.

p. 11

Legal principles established

#
  • Where a matter is directly and substantially in issue in a previously instituted suit between the same parties, the later suit must be stayed; proceeding with it is an abuse of court process
  • Where the same injunctive relief over the same subject matter has already been decided in a prior suit between the same parties, res judicata bars its re-litigation

Court orders

#
  1. 1.The application dated December 22, 2022 is dismissed with costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 40, 40(6), 47
  • Civil Procedure ActSection 6
  • Land Registration ActSections 26(1), 79, 80, 87

Cases cited (15)

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358

    Conditions for grant of interlocutory injunction

  • Elizabeth Wambui Kiragu v Ndirangu Machari
    (2017) eKLR

    First-in-time title prevails between competing titles

  • Gitwani investment ltd & 3 others v commissioner of lands
    HCCC No 1114 of 2002

    Where Commissioner of Lands issues two titles by mistake, first in time prevails

  • Mistry Amar Singh v Serwano Wofunira Kulubya
    UCA No 74 of 1960

    Ex turpi causa non oritur action - courts will not enforce illegal transactions

  • Thomson Smith Aikman, Alan Malloy & others v Muchoki & others
    [1982] eKLR

    Equity will not assist law-breakers; injunction against those flouting rightful titles

  • Sharok Kher Mohamed Ali & Another v Southern Credit Banking Corporation Limited
    [2008] eKLR

    Court frowns on non-compliance with law and issues injunction

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR

    Holder of title must explain the root of the title

  • Mrao Limited v First American Bank Of Kenya Limited & 2 Others
    Civil Appeal No 39 of 2002

    Definition of prima facie case

  • Daniel Kipkemoi Bett & another v Joseph Rono
    [2022] eKLR

    Sub judice doctrine; later suit stayed pending prior suit

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR

    Meaning and effect of the sub judice concept

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)

    Purpose of sub-judice rule and conditions for invoking res sub-judice

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR

    Burden of proving a clear and unmistakable right for injunction

  • Multiple Hauliers East Africa Ltd v The Attorney General & 10 others
    [2013] eKLR

    Article 40(6) excludes unlawfully acquired property from constitutional protection

  • Isaac Gathungu Wanjohi & Another v Attorney General & 6 others
    Petition No 154 of 2011 [2012] eKLR

    Article 40 read as a whole excludes unlawfully acquired property

  • Mikaal Limited v Dawagi Investments Limited
    Environment & Land Case 42 of 2021 [2022] KEELC 3385 (KLR)

    Prior ruling by Olola J dismissing a similar injunction application

Jurisdiction invoked
Articles 10, 22, 23, 40 and 47 of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mikaal Limited v Land Registrar Kilifi County & 2 others", Case Analysis (2023). Petition 38 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17333/eng@2023-05-03

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