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ELCStruck OutEnvironment & Land Petition 60 of 2019· [2023] KEELC 20369 (KLR)

Oduol (Suing as the Administrator of the Estate of Theresa Grace Achieng Aloande K. Oduol) & 10 others v Athi Water Services Board & 3 others; Presidential Delivery Unit & 4 others (Interested Parties)

Environment and Land Court
28 September 2023
LMLucy N. Mbugua
1,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land petition because an earlier case over the same pipeline dispute was already ongoing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (LN Mbugua, J) determined a Notice of Motion dated 30 May 2023 by the 1st-3rd Respondents seeking to strike out, or in the alternative stay, Environment & Land Petition 60 of 2019 on the ground that it was sub judice to Milimani ELC No. 306 of 2018 (Karolyne Mwatha Mburu and others v Athi Water Services Board and Water Resources Authority). The Respondents, through counsel Felix Muuo's affidavit, contended that both suits arise from the same facts - the Construction of Western Transmission (Kabete-Uthiru-Karen) Pipeline Lot-2 under contract No. AWSB/kfw NCD/W/02/2016 - affect the same petitioners' parcels of land, and seek similar orders; the later suit was said to be a 'plan B' filed in bad faith. The Petitioners opposed, asserting the issues and parties differ and that a consent of 10.7.2021 provided for both suits to be heard the same day; the court found no such consent on the record. Applying Section 6 of the Civil Procedure Act and the principle that the substance of the claim, not the prayers, determines sub judice, the court held that the reliefs in ELC 306 of 2018 (declaration of unlawful invasion, injunction, compensation and damages) were more or less the reliefs sought here. The petition was struck out, with each party bearing their own costs given the dispute remains active in the other suit.

Key legal issues

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Whether the petition is sub judice to Nairobi ELC No. 306 of 2018 under Section 6 of the Civil Procedure Act

Holding

Yes; the substance of both claims is the same pipeline project and the reliefs are substantially similar, so the suit offends Section 6 and is struck out.

Reasoning

The court compared the substance of the two suits: both concern the Construction of Western Transmission (Kabete-Uthiru-Karen) Pipeline Lot-2 and the petitioners' affected parcels. The orders in ELC 306 of 2018 (declaration of unlawful invasion, injunction, compensation/damages) mirror the reliefs sought here. Adding parties does not defeat res sub judice. The alleged consent to hear both suits together was not found on the record.

Legal principles established

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  • In determining whether sub judice applies, the substance of the claim rather than the prayers sought is decisive
  • The sub-judice rule prevents multiplicity of suits over the same subject matter to avoid conflicting decisions and abuse of process

Court orders

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  1. 1.The petition is struck out
  2. 2.Each party is to bear their own costs of this suit
  3. 3.The application dated 30.5.2023 is found to be merited

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (5)

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

    Sub judice is determined by the substance of the claim, not the prayers sought.

  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 Others
    [2022] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested parties)
    [2020] eKLR (Supreme Court Advisory Opinion No. 1 of 2017)

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

  • Nyanza Garage v Attorney General
    Kampala High Court Civil Suit No. 450 of 1993

    Rationale for avoiding multiplicity of suits between the same parties over the same subject matter.

  • ASL Credit Limited v Abdi Basid Sheikh Ali & another
    [2019] eKLR

    Cited as the case in which the Nyanza Garage rationale was restated.

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (not expressly cited in the ruling)

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, "Oduol (Suing as the Administrator of the Estate of Theresa Grace Achieng Aloande K. Oduol) & 10 others v Athi Water Services Board & 3 others; Presidential Delivery Unit & 4 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition 60 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20369/eng@2023-09-28

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