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ELCDismissedELC Case (Notice of Motion dated 16th February 2024)· [2024] KEELC 1700 (KLR)

Kuria v Wanjohi; Chief Land Registrar (Interested Party) (Environment & Land Case 068 of 2024) [2024] KEELC 1700 (KLR)

Environment and Land Court
4 April 2024
4,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 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 Plaintiff/Applicant moved the Environment and Land Court at Nairobi by Notice of Motion dated 16 February 2024 seeking maintenance of status quo over the suit property, placement of the file before Hon Justice Oguttu Mboya, consolidation of the instant suit with ELC Case No. 275 of 2022, and directions on pleadings and hearing. The Defendant/Respondent raised a preliminary objection contending the suit was an abuse of due process and contravened Section 6 of the Civil Procedure Act (sub-judice); the Interested Party likewise urged a stay. The court framed two issues: whether the suit was filed during the subsistence of a similar suit and should be stayed, and whether consolidation was warranted. On the first, the court found the Plaintiff had himself filed ELC No. 275 of 2022 over the same property, L.R No. 36/VII/413, which remains pending with a counterclaim, so filing the instant suit amounted to abuse of the due process of the court. However, the court declined to strike out the suit, holding Section 6 only provides for stay of the subsequent suit, and adopted the Supreme Court's formulation of res sub-judice. On consolidation, the court refused, noting the earlier suit was substantially part heard while the new suit was at pleading stage, and that the Plaintiff, found to have committed perjury, could not invoke equitable discretion with unclean hands. The Application was dismissed with costs to the Defendant/Respondent and the Interested Party, and the court decreed a stay of the instant proceedings pending determination of ELC Case No. 275 of 2022.

Key legal issues

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01

Whether the suit was filed during the subsistence of a previous suit on the same subject matter and should be stayed under Section 6 of the Civil Procedure Act

Holding

Yes. ELC No. 275 of 2022, filed by the same Plaintiff over the same property, remains pending with a counterclaim; the instant suit is an abuse of due process and its proceedings are stayed.

Reasoning

The court found as common ground that the Plaintiff had earlier filed ELC No. 275 of 2022 over L.R No. 36/VII/413 and that the suit, including the Defendant's counterclaim, remains undetermined. Filing the present suit while aware of the earlier one was abuse of process. However, Section 6 does not admit striking out; its explicit wording is stay. Adopting the Supreme Court's exposition of res sub-judice in KNCHR v AG, the court decreed a stay of the instant suit pending determination of the earlier one.

p. 7
02

Whether the instant suit should be consolidated with ELC No. 275 of 2022

Holding

No. Consolidation was refused because the suits are at vastly different stages, the Plaintiff's conduct was mala fide, and he was found to have committed perjury.

Reasoning

The court observed the instant suit was at a fresh pleading stage while ELC No. 275 of 2022 was substantially part heard, so consolidation would stall the ongoing matter and cause absurdity. Further, the Plaintiff knowingly filed the suit during the pendency of his own earlier suit and was found to have committed perjury; equity aids only those with clean hands. Consolidation being discretionary, it cannot issue where the court's process is invoked with ulterior motives.

p. 8

Legal principles established

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  • Section 6 of the Civil Procedure Act provides only for stay of a subsequent suit, not its striking out
  • Filing a subsequent suit over the same subject matter while a previous suit between the same parties is pending constitutes abuse of the due process of the court, and the appropriate remedy is stay of the later suit
  • Consolidation is a discretionary relief exercisable only where the court's process has been invoked bona fide

Court orders

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  1. 1.The Application dated the 16th of February 2024 be and is hereby dismissed with costs to the Defendant/Respondent and the Interested Party
  2. 2.A stay of proceedings in respect of the instant matter pending the hearing and determination of ELC Case No. 275 of 2022

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B, 3, 3A and 6
  • Civil Procedure RulesOrder 11 Rule 3, Order 40 Rule 1, Order 51 Rule 1
  • Constitution of Kenya, 2010Articles 159(2) and 157

Cases cited (5)

  • David Omwenga Maobev v Republic
    (2015) eKLR
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR
  • Sarak v Kotoye
    (1992) 9 NWLR (Pt 264) 156 at 188-189
  • Kenya National Commission on Human Rights v Attorney General, Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 11 Rule 3, Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules; Article 159(2) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kuria v Wanjohi; Chief Land Registrar (Interested Party) (Environment & Land Case 068 of 2024) [2024] KEELC 1700 (KLR)", Case Analysis (2024). ELC Case (Notice of Motion dated 16th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1700/eng@2024-04-04

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