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ELCStruck OutNotice of Motion dated 12th August 2023 (ELC matter, Nairobi/Block 126/489)

Ndungu v Macaharia (Environment & Land Case E036 of 2023) [2024] KEELC 1062 (KLR)

Environment and Land Court
22 February 2024
950 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Applicant, registered owner of LR No Nairobi/block 126/489, sought an eviction order against the Respondent and an injunction restraining dealings on the land, contending that his certificate of title was prima facie evidence of ownership under sections 24(a) and 26(1) of the Land Registration Act, and relying on Dr Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 others. The Respondent filed a preliminary objection asserting the suit was sub judice, bad in law and an abuse of process, since an earlier matter between the same parties seeking similar orders, ELC Case No 8514/2019 before the Chief Magistrate's court, had proceeded to full hearing and was undetermined. He also argued the application was unsigned and that injunctive relief could not issue against a party in occupation. The court framed three issues: competence of the unsigned application, sub judice, and the requirements for a temporary injunction. On the first issue, the court held that initialing sufficed for an unrepresented applicant. On sub judice, the court found the parties, suit property and issues identical to the earlier suit and, invoking section 6 of the Civil Procedure Act, held that litigating the same matter in multiple courts is an abuse of process. Independently, the court noted no plaint existed in which the interim orders could be anchored, meaning the court would effectively issue final orders. The application was struck out with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application is incompetent as it is not signed
  2. 2.Whether the application is sub judice
  3. 3.Whether the plaintiff has satisfied the requirements for issuance of a temporary injunction

Key legal issues

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01

Whether an application signed by initials rather than a full signature is incompetent

Holding

Initialing the application suffices, particularly where the applicant was unrepresented at filing.

Reasoning

The Respondent argued the application was defective for want of signature. The court noted that both the application and the amended application were initialed by the Applicant, who was unrepresented at the point of filing. The court held that initialing suffices to cure the defect, rejecting this ground of the preliminary objection.

p. 2
02

Whether the application is sub judice given the pending ELC Case No 8514/2019

Holding

The application is sub judice and an abuse of process, as the same parties, same suit property and same issues are pending before the Chief Magistrate's court in an earlier-filed suit.

Reasoning

The Respondent deponed that an active lower court matter, ELC Case No 8514/2019 Joseph Ndungu v Kennedy Mwangi, seeking similar orders had proceeded to full hearing and was undetermined. The court found from the pleadings annexed to the Replying Affidavit that the parties, the suit property and the issues were the same. Section 6 of the Civil Procedure Act therefore barred the court from proceeding, and multiplicity of suits is an abuse of process.

p. 2
03

Whether interlocutory orders could issue in the absence of a plaint

Holding

Interim orders cannot issue where there is no plaint in which they can be anchored; doing so would amount to issuing final orders.

Reasoning

Quite apart from sub judice, the court observed that the Applicant sought interlocutory orders by Notice of Motion without any plaint on record. An injunction or eviction order in such circumstances would effectively be final relief granted without a principal suit, which the court cannot do. This independently rendered the application incompetent and an abuse of process, justifying striking it out with costs.

p. 2

Legal principles established

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  • Section 6 of the Civil Procedure Act bars a court from trying a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties.
  • Filing multiple suits before different courts on the same subject matter is an abuse of the process of the court.

Court orders

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  1. 1.The application dated 12th August 2023 is struck out
  2. 2.Costs of the application to the defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 162(2)(3) and 165(5) of the Constitution of Kenya 2010

Relief refused

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Eviction order against the Respondent from LR No Nairobi/block 126/489

The application is sub judice, being substantially similar to pending ELC Case No 8514/2019, and seeks interim orders without a plaint to anchor them

p. 3

Injunction restraining the Respondent from dealing with the suit property

No plaint was on file against which interim orders could issue; the court would effectively be issuing final orders

p. 2

Costs

The application is struck out with costs (to the defendant/Respondent).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
p. 2Sub judice rule - section 6 Civil Procedure Act
It is an abuse of the process of the court for one litigant to file multiple suits before difierent courts. This court cannot proceed with this matter and yet there is another matter which was filed earlier.
p. 2Multiplicity of suits as abuse of process
There is no plaint in respect of which the interim orders sought in the application will be anchored. The court would essentially be issuing final orders.
p. 2Interim relief requires an anchored principal suit
For the above reasons, I find that the application is incompetent and is an abuse of the process of the court. The application is struck out with costs.
p. 3Final orders - striking out

Issues in the judgment

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minor

The judgment contains typographical errors and inconsistent party references (e.g. 'Plaintifi', 'Afidavit', 'difierent'), and refers to the parties as both Plaintiff/Respondent and Applicant/Respondent without explanation.

minor

The case number of the instant suit is not stated on the face of the judgment; only the application date and the related lower court case number appear.

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, "Ndungu v Macaharia (Environment & Land Case E036 of 2023) [2024] KEELC 1062 (KLR)", Case Analysis (2024). Notice of Motion dated 12th August 2023 (ELC matter, Nairobi/Block 126/489). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1062/eng@2024-02-22

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