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ELCAllowedEnvironment & Land Case 250 & 386 of 2017 (Consolidated)· [2023] KEELC 21149 (KLR)

Meshack Mwaka Musyoki (As the legal representative of the Estate of the Late Henry Musyoki Kilonzi) v Makau & 11 others

Environment and Land Court
31 October 2023
COChristine A Ochieng
1,290 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 withdrew a duplicate land case filed in a lower court while bigger cases over the same land were already pending.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (Ochieng J) determined a notice of motion dated 27 February 2023 by the twelve defendants in consolidated ELC Cases 250 and 386 of 2017, brought under sections 3, 3A and 18 of the Civil Procedure Act, seeking withdrawal of Mavoko Magistrate's Court CMELC No. 64 of 2019. The 8th defendant, Amina Shida Adam, deposed that the plaintiff, Meshack Mwaka Musyoki, had filed the lower court suit seeking injunction and eviction from LR No. 12715/13406 while the two consolidated ELC suits over LR No. 12715/179 were pending, without disclosing them. A preliminary objection raising sub judice had been dismissed by the magistrate's court on 23 June 2022. The plaintiff, though served, filed no response or submissions. The court framed a single issue: whether the Mavoko suit should be withdrawn. Relying on section 18(1) of the Civil Procedure Act, and noting the uncontroverted evidence including the 5 June 2020 consolidation ruling by Angote J, the court held that filing the lower court suit during the pendency of the consolidated suits amounted to an abuse of the court process and that the suit was sub judice. The application was allowed: the Mavoko CMELC No. 64 of 2019 was withdrawn, with costs of the application awarded to the defendants/applicants.

Key legal issues

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01

Whether the Mavoko CMELC No. 64 of 2019 suit should be withdrawn as sub judice

Holding

The application was merited; the lower court suit was filed during the pendency of the consolidated ELC suits over the same subject matter and parties, amounting to abuse of process, and was withdrawn.

Reasoning

The court noted the plaintiff did not controvert the defendants' averments or deny that the lower court suit related to the consolidated suits. The consolidation ruling of 5 June 2020 by Angote J had stayed subdivision of LR No. 12715/179, and the plaintiff did not deny that the subdivision produced his plot LR No. 12715/13406, the subject of the lower court suit. Filing it without disclosing the pending ELC suits was abusive.

p. 3

Legal principles established

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  • Filing a suit in a subordinate court during the pendency of consolidated suits over the same subject matter and parties amounts to an abuse of the court process and warrants withdrawal under section 18 of the Civil Procedure Act.

Court orders

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  1. 1.That the Mavoko Magistrate's Court CMELC No. 64 of 2019 be and is hereby withdrawn
  2. 2.That the costs of the application are awarded to the Applicants
Jurisdiction invoked
Sections 3, 3A and 18 of the Civil Procedure Act (section 18(1) power to withdraw suits pending in subordinate courts)

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, "Meshack Mwaka Musyoki (As the legal representative of the Estate of the Late Henry Musyoki Kilonzi) v Makau & 11 others", Case Analysis (2023). Environment & Land Case 250 & 386 of 2017 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21149/eng@2023-10-31

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