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ELCDismissedThika ELCOS No E004 of 2023· [2024] KEELC 1558 (KLR)

Chege & another v Nyamu (Enviromental and Land Originating Summons E004 of 2023) [2024] KEELC 1558 (KLR)

Environment and Land Court
4 March 2024
BEB M Eboso
1,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 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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Mukirae Chege and Thairu Chege filed an originating summons dated 1/7/2023 (filed 3/8/2023) seeking a declaration that they are entitled to be registered as proprietors of land parcel Kabete/Mwimuto/T.78 under the doctrine of adverse possession. The defendant brought a notice of motion dated 11/10/2023 seeking to strike out the originating summons as an abuse of process, contending that a subsisting suit between the same parties over the same subject matter - Thika ELCLC No E013 of 2023, filed 31/7/2023, in which eviction was sought against the plaintiffs - rendered the originating summons subjudice contrary to Section 6 of the Civil Procedure Act. The plaintiffs opposed, stating they filed this suit after the dismissal of a miscellaneous application in Kikuyu SPMC Succession Cause No 183 of 2014, that they were never served with papers in the Thika suit, and that the two suits were filed two days apart. The court framed a single question: whether the originating summons should be struck out for offending the subjudice principle. It held that subjudice is a factual phenomenon to be proved by the party alleging it, including proof of the later claimant's awareness of the earlier suit. The defendant failed to demonstrate the plaintiffs had been served with papers in the Thika suit when they filed this suit, so no deliberate breach of Section 6 was established. However, noting the subject matter of the two suits was the same, the court consolidated the two suits, with Thika ELCLC No E013 of 2023 as the lead file, to be heard together by the court seized of that suit. Costs of the application were made costs in the cause.

Key legal issues

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01

Whether the originating summons offended Section 6 of the Civil Procedure Act (subjudice) and was liable to be struck out

Holding

The defendant failed to establish subjudice because he did not demonstrate the plaintiffs were aware of Thika ELCLC No E013 of 2023 when they filed this suit two days after it was instituted

Reasoning

The court found subjudice is a factual phenomenon requiring evidence. The two suits were filed two days apart (31/7/2023 and 3/8/2023). The defendant's supporting affidavit did not show the plaintiffs had been duly served with papers relating to the Thika suit by the time they filed the originating summons. Without that critical evidence, the plaintiffs could not be said to have deliberately violated the subjudice principle. The application therefore failed, though the court noted the subject matter of the two suits was the same.

p. 3
02

What disposition was appropriate given the overlapping subject matter of the two suits

Holding

Consolidation of the two suits, with the first suit in time as the lead file

Reasoning

Although subjudice was not established, the court observed on a perusal of the pleadings that the subject matter of the two suits is the same: the plaintiffs in the Thika ELCLC suit seek eviction against three defendants, two of whom are the plaintiffs in this originating summons seeking adverse possession against one of the joint plaintiffs in that suit. Given these circumstances, the court considered consolidation the appropriate order, designating the first suit in time as the lead file to be heard together.

p. 3

Legal principles established

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  • Subjudice is a factual phenomenon that must be established through evidence by the party alleging it, including proof that the claimant in the later suit was aware of the earlier suit.
  • Where subjudice is established, the court may strike out the offending suit, stay it pending determination of the preceding suit, or consolidate the suits.

Court orders

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  1. 1.Thika ELCLC No E013 of 2023 and Thika ELCOS No E004 of 2023 are hereby consolidated
  2. 2.Thika ELCLC No E013 of 2023 shall be the lead file
  3. 3.The two consolidated cases shall be heard together by the court currently seized of Thika ELCLC No E013 of 2023
  4. 4.Costs of the application shall be in the cause
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; motion decided under 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, "Chege & another v Nyamu (Enviromental and Land Originating Summons E004 of 2023) [2024] KEELC 1558 (KLR)", Case Analysis (2024). Thika ELCOS No E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1558/eng@2024-03-04

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