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ELCStruck OutNot stated in the judgment (Appeal from Makindu PMCC No. 48 of 2009)· [2024] KEELC 1046 (KLR)

Katunga & 8 others v Matee (Environment and Land Appeal 4 of 2020) [2024] KEELC 1046 (KLR)

Environment and Land Court
21 February 2024
TMT. MURIGI
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a duplicate stay application, warning that refiling identical court applications while the first remains pending is an abuse of process that carries costs.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 25th January 2023 in which the Appellants/Applicants, aggrieved by a judgment of Hon. J.O. Magori SPM delivered on 10/07/2018 in Makindu PMCC No. 48 of 2009, sought a stay of execution of that judgment and decree pending appeal, a stay of any demolition of their property or of their arrest, and costs. They relied on Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6, arguing substantial loss, absence of delay and an arguable appeal. The Respondent opposed, contending that the application was an abuse of process because the Applicants had earlier filed an identical application dated 10/08/2020 which was never prosecuted and had been listed for dismissal for want of prosecution; he argued that the Applicants sought to deny him the fruits of his judgment. The court framed a single issue: whether the application was an abuse of process. Reviewing the definitions of abuse of process in Muchanga Investments and Amaefule v The State, the court confirmed from the record that the 2020 application remained pending, with no notice of withdrawal filed. Although acknowledging that striking out is a draconian measure to be exercised sparingly, the court held that filing an identical application while the earlier one remained pending was an abuse. The application dated 25th January 2023 was struck out with costs to the Respondent. The stay of execution, demolition and arrest orders were therefore not granted, and the underlying appeal remains pending.

Key legal issues

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Whether the application dated 25th January 2023 is an abuse of the court process

Holding

Yes; it duplicates an earlier, still-pending and unprosecuted application dated 10/08/2020 seeking identical stay orders, with no notice of withdrawal on record, and it was struck out with costs

Reasoning

The court traced the Applicants' earlier application of 10/08/2020 seeking identical stay orders, which was never prosecuted and was fixed for dismissal for want of prosecution. No notice of withdrawal was filed, so that application remained pending. The court reiterated that striking out is draconian and sparingly exercised, but found this the clearest of cases: filing a duplicate application was an abuse and the court could not allow it.

p. 4

Legal principles established

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  • Filing a second application seeking the same orders while an identical earlier application remains pending and unprosecuted, with no notice of withdrawal filed, constitutes an abuse of the court process
  • Striking out pleadings is a draconian measure to be exercised sparingly and in the clearest of cases

Court orders

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  1. 1.The application dated 25th January, 2023 is struck out as an abuse of the court's process
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 21 Rule 12; Order 51 Rule 1; Order 42 Rule 6(1) and (2)

Cases cited (2)

  • Muchanga Investment Limited v Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No 25 of 2002 (2009) eKLR
  • Amaefule & others v The State
    3 PLR/1988/12 (SC)
On appeal from
Senior Principal Magistrate's Court, Makindu
Makindu PMCC No. 48 of 2009
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 21 Rule 12 and Order 51 Rule 1 of the Civil Procedure Rules (Appellants'/Applicants' application; the judgment names no constitutional provision)

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, "Katunga & 8 others v Matee (Environment and Land Appeal 4 of 2020) [2024] KEELC 1046 (KLR)", Case Analysis (2024). Not stated in the judgment (Appeal from Makindu PMCC No. 48 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1046/eng@2024-02-21

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