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ELCOtherCivil Case E011 of 2022· [2023] KEELC 17945 (KLR)

Rage & 15 others v Mohamed

Environment and Land Court
15 June 2023
JMJ. M. Mutungi
3,209 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court stayed a duplicate Garissa land suit, holding the first-filed Magistrate's Court case must finish first.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Garissa (Mutungi, J) determined two competing applications in a land dispute over plot No. GSA/2019, Bulla Iqra, Garissa. The sixteen plaintiffs, alleging allocation of the plot in 2009 as members of Emrey Welfare Group by the defunct Municipal Council of Garissa, sought an injunction restraining the defendant from entering, subdividing or selling the plot. The defendant applied to strike out the suit as subjudice, citing Garissa CM ELC No. E022 of 2022 (Matan Haji Rage v Bashir Mohamed) over the same plot, for a defective verifying affidavit denying the pending suit, for failure to take out summons under order 5 rule 1, and as an abuse of process. The court found the earlier suit was not fully disposed of: although the plaintiff's claim was withdrawn on December 28, 2022, the defendant's counterclaim was not addressed, and the defendant had filed a bill of costs and a review application. Holding that two courts should not determine the same dispute between the same parties, the court stayed the present suit pending determination of the Magistrate's Court suit, leaving the injunction plea to that court. The striking-out limbs failed: the plaintiff had disclosed the earlier suit and its withdrawal, and the defendant, having appointed advocates and filed pleadings, suffered no prejudice from non-service of summons. Costs were in the cause.

Key legal issues

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01

Subjudice under section 6 of the Civil Procedure Act

Holding

The earlier Magistrate's Court suit remains alive because the counterclaim was not withdrawn; the present suit over the same subject matter must be stayed

Reasoning

The trial magistrate's endorsement of withdrawal made no mention of the counterclaim, and the defendant filed a bill of costs covering both claim and counterclaim and an application for review. The court was satisfied the lower court suit was alive and involved the same subject matter and parties, so hearing both courts could produce conflicting decisions.

p. 5
02

Effect of failure to take out and serve summons (order 5 rule 1)

Holding

Striking out for failure to take out summons is a drastic step; where the defendant had notice and participated without prejudice, the suit is not fatally defective

Reasoning

The court relied on order 5 rule 1(5) and (6) and authorities holding that failure of service does not necessarily nullify proceedings. The defendant appointed advocates on January 12, 2023 and filed pleadings, showing notice; no prejudice was demonstrated, so the striking-out limb failed.

p. 5
03

Whether the verifying affidavit misled the court

Holding

No deliberate misleading; the plaintiff disclosed the earlier suit and stated it had been withdrawn, which was factual given the endorsement of withdrawal

Reasoning

The ruling of December 28, 2022 gave the impression the suit was withdrawn in its entirety, and the defendant himself filed a bill of costs covering the counterclaim and sought review of the ruling. In those circumstances the court could not find an intent to mislead.

p. 5

Legal principles established

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  • Withdrawal of a plaintiff's suit does not dispose of a defendant's counterclaim unless the defendant also agrees to its withdrawal
  • Where two courts are seized of the same subject matter between the same parties, the court first seized should be permitted to hear and conclude the matter
  • A defendant who has notice of a suit by other means and has participated in proceedings should not complain of non-service of summons absent demonstrated prejudice

Court orders

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  1. 1.The present suit is stayed pending the determination of Garissa CM ELC Case No. 022 of 2022
  2. 2.The plaintiffs' application dated December 19, 2022 seeking injunctive orders was not determined; parties at liberty to move the Court once the Magistrate's Court suit is determined
  3. 3.Costs of the applications shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 4 rule 1(1)(f)
  • Civil Procedure Rules, 2010Order 4 rule 1(2)
  • Civil Procedure Rules, 2010Order 5 rule 1
  • Civil Procedure Rules, 2010Order 5 rule 1(5) and (6)
  • Civil Procedure Rules, 2010Order 25 rule 1
  • Civil Procedure Rules, 2010Order 25 rule 4
  • Civil Procedure ActSection 6
  • Environment and Land Court ActSection 13

Cases cited (3)

  • Grace Wairimu Mungai v Catherine Njambi Muya
    [2014] eKLR

    Striking out where no summons issued or served for nearly 2 years

  • ICDC v Sam Model Industries Ltd
    [2007] eKLR

    Failure to serve summons within stipulated period does not necessarily render proceedings null and void

  • Tropical Foods International & Another v Eastern and Southern African Trade & Development Bank & Another
    [2017] eKLR

    Purpose of summons; defendant with notice by other means who participates cannot complain of non-service absent prejudice

Jurisdiction invoked
Environment and Land Court Act, section 13 (jurisdiction over the dispute was contested by the defendant)

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, "Rage & 15 others v Mohamed", Case Analysis (2023). Civil Case E011 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17945/eng@2023-06-15

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