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ELCPartially AllowedMachakos ELC Case (instant suit) with Notice of Motion Applications dated 21st February 2023 and 28th February 2023· [2024] KEELC 780 (KLR)

Mulevu (Suing as the legal representative of the Estate of Mulevu Mbolu) v Musya & 2 others (Environment & Land Case E017 of 2021) [2024] KEELC 780 (KLR)

Environment and Land Court of Kenya
20 February 2024
2,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court consolidated two land disputes over the same plot and refused to strike out the landowner's suit, so both claims will be heard together.

What this practically means

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Executive summary

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The Environment and Land Court at Machakos (Christine Ochieng, J) determined two competing Notice of Motion applications. The plaintiff, Joshua Mbolu Mulevu, suing as legal representative of his late father Mulevu Mbova, the alleged registered proprietor of Mavoko/Machakos Town Block 3/1072 (formerly Katelembo Plot No. 2730), sought consolidation of the instant suit with Machakos ELC No. 240 of 2017, where the 2nd Defendant here is the plaintiff. The 2nd Defendant, John Kilolo Mang'eli, sought striking out of the instant suit as an abuse of process and sub judice under Section 6 of the Civil Procedure Act, alleging the plaintiff had merely changed the plot number. Applying Order 11 Rule 3(1)(h) and the consolidation criteria in Benson G. Mutahi and the Supreme Court's decision in Law Society of Kenya v Centre for Human Rights and Democracy, the court found both suits turn on ownership of the same land, that no party would be prejudiced, and granted consolidation to facilitate efficient and expeditious disposal. On striking out, guided by Order 2 Rule 15(1) and D.T. Dobie as restated in Delphis Bank v Caneland, the court held that a reasonable cause of action had been disclosed, the suit was not sub judice because the plaintiff was not a party to ELC No. 240 of 2017, and the disputed title emanating from a deceased's estate required determination of the root of title. The consolidation application was allowed, the striking-out application dismissed, and costs of both applications were made costs in the cause.

Key legal issues

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01

Whether the suit should be consolidated with ELC No. 240 of 2017

Holding

Consolidation granted; both suits revolve around the same suit land and no party will suffer prejudice or disadvantage.

Reasoning

Applying Order 11 Rule 3(1)(h) of the Civil Procedure Rules and the criteria in Benson G. Mutahi and the Supreme Court's guidance in Law Society of Kenya v Centre for Human Rights & Democracy, the court found that the fulcrum of both disputes is the same parcel of land, formerly Katelembo Plot No. 2730, owned by the plaintiff's deceased father. The same questions of law and fact arise and consolidation would facilitate efficient and expeditious disposal without conferring undue advantage.

p. 4
02

Whether the suit should be struck out as an abuse of process and sub judice

Holding

Application dismissed; the suit discloses a reasonable cause of action and is not sub judice.

Reasoning

The court applied Order 2 Rule 15(1) and the D.T. Dobie principle that striking out should not be done lightly or by embarking on the merits. The plaintiff claims through transmission from the deceased registered proprietor, whose estate's title must be deciphered. The plaintiff is not a party to ELC No. 240 of 2017, so Section 6 of the Civil Procedure Act on sub judice is not offended.

p. 5

Legal principles established

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  • Consolidation of suits is appropriate where the same questions of law or fact arise, the reliefs arise out of the same transaction, and no party will be prejudiced or unduly advantaged.
  • The power to strike out pleadings must be exercised cautiously and without embarking on the merits of the case.

Court orders

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  1. 1.Notice of Motion Application dated 21st February 2023 allowed
  2. 2.Notice of Motion Application dated 28th February 2023 dismissed; suit not struck out
  3. 3.Suit consolidated with ELC No. 240 of 2017 for hearing and final determination
  4. 4.Costs of the two Applications to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure Rules, 2010Order 11 Rule 3(1)(h)
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)

Cases cited (9)

  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • P.P. Gupta v East Asiatic Co.
    Air 1960 All 184
  • Selecta Kenya Gmbh & Co. KG v Chase Bank Kenya Limited & 2 others
    [2018] eKLR
  • Chesinende Farmers Cooperative Society Limited v Joel K. Bett (being sued on his own behalf and on behalf of Chesinende Rural Craft) & 25 others) & another
    [2018] eKLR
  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
  • Law Society of Kenya v The Centre for Human Rights and Democracy
    Petition No. 14 of 2013; (2014) eKLR
  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 Others
    (2022) eKLR
  • Nyati Security Guards & Services Ltd v Municipal Council of Mombasa
    (2004) eKLR
  • Delphis Bank Limited v Caneland Limited
    [2014] eKLR
Jurisdiction invoked
Order 11 Rule 3(1)(h) and Order 2 Rule 15(1) of the Civil Procedure Rules, 2010; Section 6 of the Civil Procedure Act

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, "Mulevu (Suing as the legal representative of the Estate of Mulevu Mbolu) v Musya & 2 others (Environment & Land Case E017 of 2021) [2024] KEELC 780 (KLR)", Case Analysis (2024). Machakos ELC Case (instant suit) with Notice of Motion Applications dated 21st February 2023 and 28th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/780/eng@2024-02-20

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