Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2024] KEELC 3608 (KLR)

Kitiyo & another v Mwoi & 2 others (Environment & Land Case 184 of 2016) [2024] KEELC 3608 (KLR)

Environment and Land Court
12 April 2024
3,017 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court barred police from arresting a landowner over a dispute already in court, ruling criminal charges filed late were an abuse of process.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kitale on an oral application made on 22/02/2024 by the 1st Defendant, Stephen Lowasikou Moi, seeking an order barring the police or any other person from arresting or confining him in relation to land parcel No. Kitale Municipality Block 3/474 pending determination of the suit. The application arose after DCI Kitale officers arrested the 1st Defendant from within the courtroom on the morning he was to testify, pursuant to a complaint lodged by the 1st Plaintiff about three years earlier over the same subject matter already before the court since 2016. The Respondent opposed, questioning the court's jurisdiction to grant what amounted to anticipatory bail, and noting the defendant had already testified. Nyagaka J held that although section 193A of the Criminal Procedure Code permits concurrent criminal and civil proceedings, it does not license abuse of court process. A party who elects civil jurisdiction first over an issue must await its determination. Drawing on authority including the Supreme Court's decision in Jirongo v Soy Developers and the Court of Appeal in Commissioner of Police v Kenya Commercial Bank, the court found the timing and three-year delay in prosecuting the complaint, culminating in an arrest from the courtroom to prevent testimony, evidenced abuse of process and ulterior motive. The court acknowledged it could not permanently stop criminal proceedings or quash DCI actions - matters reserved for the High Court - but could suspend arrests over the suit land pending determination. The application was allowed with costs to the 1st Respondent.

Key legal issues

#
01

Whether concurrent criminal and civil proceedings over the same subject matter are permissible

Holding

Section 193A CPC allows concurrency but does not give a blank cheque to abuse the court's process; criminal jurisdiction wielded in bad faith to scuttle civil proceedings must be abhorred and stopped

Reasoning

The court read section 193A as permitting simultaneous proceedings but subject to good faith. Where a party first invokes civil jurisdiction over a subject and later triggers criminal process over the same issue, the criminal route is an abuse. The timing of the complaint, three years' delay, and the arrest from the courtroom on the eve of testimony showed the criminal process was being used for selfish ends rather than genuine prosecution.

p. 2
02

Whether the court had jurisdiction to grant the relief sought

Holding

The court lacked jurisdiction to stop criminal proceedings permanently or quash DCI actions (High Court's preserve) but could suspend arrests in relation to the subject matter pending determination of the suit before it, to protect its own process

Reasoning

The judge acknowledged that prohibiting criminal proceedings or quashing investigative steps is the preserve of the High Court. However, the application merely sought suspension of arrests over the suit land until the court determines ownership. Because the court is seized of the same issue and lis pendens applies, it could act to prevent abuse of its process without arrogating High Court jurisdiction.

p. 5
03

Whether the timing and delay of the criminal complaint evidenced abuse of process

Holding

The delay in prosecuting the complaint and the arrest from the courtroom on the morning of testimony demonstrated ulterior motive and abuse of the criminal process

Reasoning

Relying on Republic v AG ex parte Ngeny, George Joshua Okungu, Jirongo v Soy Developers (SC) and Commissioner of Police v KCB (CA), the court held that unexplained delay and inaction by a complainant, particularly to gain leverage in civil proceedings, taints a prosecution with malice. Arresting the defendant from the courtroom to prevent him testifying served no public interest.

p. 5

Legal principles established

#
  • Section 193A of the Criminal Procedure Code permits concurrent criminal and civil proceedings but does not license abuse of the court process; criminal jurisdiction used to scuttle civil proceedings must be stopped
  • A party who elects to litigate an issue in civil proceedings first must await the determination of that court and may not simultaneously pursue a parallel criminal process over the same subject matter

Court orders

#
  1. 1.Application dated 22/02/2024 allowed with costs to the 1st Respondent
  2. 2.An order suspending and/or barring the police or any other person from arresting or confining the 1st Respondent, one Stephen Lowasikou Moi, in relation to issues touching on land parcel No. Kitale Municipality Block 3/474, being the subject of the instant proceedings, pending the determination of this suit

Authorities

#

Legislation

  • Constitution of KenyaArticle 156(4)
  • Criminal Procedure Code, Chapter 75 of the Laws of KenyaSection 193A
  • Evidence Act, Chapter 80 of the Laws of KenyaSection 44(2)

Cases cited (4)

  • Republic v Attorney General & Another ex parte Ngeny
    (2001) KLR 612
  • George Joshua Okungu & Another v The Chief Magistrate's Court Anti-Corruption Court at Nairobi & Another
    [2014] eKLR
  • Jirongo v Soy Developers Ltd & 9 Others
    (Petition 38 of 2019) [2021] KESC 32 (KLR) (16 July 2021)
  • Commissioner of Police & the Director of Criminal Investigation Department & Another v Kenya Commercial Bank & 4 Others
    [2013] eKLR
Jurisdiction invoked
Inherent jurisdiction to protect the court's process from abuse; court expressly disclaimed power to stop criminal proceedings, which it stated is the preserve of the High Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kitiyo & another v Mwoi & 2 others (Environment & Land Case 184 of 2016) [2024] KEELC 3608 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3608/eng@2024-04-12

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