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ELCStruck OutEnvironment & Land Petition E035 of 2022· [2023] KEELC 17800 (KLR)

Nesco Services Limited v Ethics and Anti-Corruption Commission & 3 others

Environment and Land Court
25 May 2023
LMLucy N. Mbugua
1,975 words in judgment
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The bottom line

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A Kenyan court struck out a land dispute filed as a constitutional petition because the same ownership fight was already before another court.

What this practically means

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Executive summary

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Nesco Services Limited petitioned the Environment and Land Court seeking declaration of legal ownership of parcel LR 209/13557, a declaration that the EACC's threatened inspection and valuation of the land was unlawful and unconstitutional, and alternatively compensation at market value if the allocation was found irregular. It also sought interim injunctive orders restraining the EACC. At an interim ruling on November 3, 2022 the court noted the existence of ELC 157 of 2017, in which Harun Osoro Nyamboki - a director of the petitioner - claims ownership of the same parcel, and directed parties to address whether this petition was properly filed. The respondents submitted the petition was sub judice and an abuse of process contrary to Section 6 of the Civil Procedure Act. The court, per LN Mbugua J, found that both suits require determination of ownership of LR 209/13557 and the validity of the titles issued, and that the claimant in the earlier suit was fronting his company in the petition. Applying the sub judice doctrine and the principle that the substance rather than the form of a suit determines sub judice status, the court held the petition an abuse of court process. The application dated September 14, 2022 and the entire petition were struck out with costs to the respondents.

Key legal issues

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01

Whether the petition is sub judice in light of ELC 157 of 2017

Holding

Yes; the same parcel and the validity of the same title are in issue in the earlier suit, and the claimant there is the director fronting the petitioner here

Reasoning

Section 6 of the Civil Procedure Act bars trial of a matter directly and substantially in issue in a previously instituted suit between the same parties or those claiming under the same title. The plaintiff in ELC 157 of 2017 (Harun Osoro Nyamboki) swore the affidavit supporting this petition; both suits require the court to determine ownership of LR 209/13557 and the validity of the titles issued. Converting the dispute into a constitutional petition does not change its substance.

p. 3
02

Whether the petition is an abuse of court process

Holding

Yes; the filing amounts to an abuse of process warranting striking out

Reasoning

Relying on the sub judice doctrine as articulated in Republic v Paul Kihara Kariuki ex parte LSK and the Supreme Court's KNCHR decision, the court found the petition a multiplicity of suits over the same subject matter risking conflicting decisions, and noted courts abhor suits disguised as constitutional petitions where no constitutional violation is truly at stake.

p. 4

Legal principles established

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  • It is the substance, not the form, of a suit that determines whether it is sub judice; disguising a claim as a constitutional petition does not evade the sub judice rule
  • The mere addition of a party does not alter the pith and substance of a suit for sub judice purposes

Court orders

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  1. 1.The Application dated September 14, 2022 and the entire Petition are struck out
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 23
  • Civil Procedure ActSection 6

Cases cited (5)

  • Muchango Investment Limited v Safaris African Limited
    [2009] eKLR

    A party should have its day in court only where there is something to be heard, not as a matter of routine

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

    Principles of the sub judice doctrine; substance over form; suits disguised as constitutional petitions abhorred

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested parties)
    [2020] eKLR

    Purpose of the sub-judice rule - avoiding multiplicity of suits and conflicting decisions

  • Thiba Min Hydro Co Ltd v Josphat Karu Ndwiga

    Form of the suit does not determine sub judice; substance governs

  • Daniel Mesiri Kasoo & 7 others v Fredrick Nkonge Mutwiri & Another
    [2020] eKLR

    Court's own prior decision on the sub judice rule

Jurisdiction invoked
Article 23 of the Constitution (enforcement of Bill of Rights, ELC with status of High Court)

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, "Nesco Services Limited v Ethics and Anti-Corruption Commission & 3 others", Case Analysis (2023). Environment & Land Petition E035 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17800/eng@2023-05-25

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