Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (Mombasa ELC suit filed 2018)· [2024] KEELC 3712 (KLR)

Nur & 3 others v Tahir Sheikh Said Investments Limited; Shami Motors Limited (Interested Party) (Enviromental and Land Originating Summons 162 of 2018) [2024] KEELC 3712 (KLR)

Environment and Land Court
23 April 2024
NMN. A. Matheka
1,548 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Mombasa court paused an adverse possession case because ownership of the same land was being decided in another case, to avoid conflicting rulings.

What this practically means

#

Executive summary

#
This was a notice of motion dated 29th January 2023 brought by the Defendant under sections 1A, 1B, 3, 3A and 6 of the Civil Procedure Act seeking a stay of the Plaintiffs' adverse possession suit over Plot No. 154 Section XXI Mombasa Island pending the hearing of Mombasa ELC No. E049 of 2023 (T.S.S. Investment Limited & 3 others v Bank of Africa & 6 others), which seeks nullification of the bank's statutory power of sale by which the Interested Party acquired the property. The Defendant argued that parallel litigation risked conflicting decisions by courts of coordinate jurisdiction and that prior rulings by Matheka J. and Yano J. had recognised that risk. The Interested Party, through its advocate Joseph Karanja, opposed the application as a delay tactic and forum shopping, noting the dismissal of the Defendant's other suits (including Mombasa HCC No. 57 of 2016) and contending non-disclosure and res judicata. The court, applying Kenya Wildlife Service v James Mutembei, Harman Singh v Mistri and Jadva Karsan v Harnam Singh Bhogal, held that stay of proceedings is a grave discretionary step with a high threshold, but found that because ownership of the suit property is directly in dispute in ELC E049 of 2023, a stay was necessary to avoid irreconcilable outcomes. The suit was stayed pending determination of Mombasa ELC No. E049 of 2023, with costs of the application in the cause.

Key legal issues

#
01

Whether this suit, claiming adverse possession of Plot No. 154 Section XXI Mombasa Island, should be stayed pending Mombasa ELC No. E049 of 2023 which challenges the validity of the sale of the same property

Holding

Yes. Since ownership of the suit property is in dispute in the later suit, staying this suit is necessary to avoid conflicting decisions by courts of coordinate jurisdiction.

Reasoning

The suit property was sold by the Bank through statutory power of sale to the interested party, and ELC E049 of 2023 seeks nullification of that sale. If that court finds the sale lawful, the property belongs to the interested party, rendering the adverse possession claim against the defendant unnecessary. Proceeding in both suits risks irreconcilable decisions. The stay power is discretionary but appropriately exercised here in the interests of justice.

p. 3

Legal principles established

#
  • Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation; the test for granting it is high and stringent.
  • The High Court has inherent jurisdiction to stay a suit for sufficient reason where the ends of justice so require.

Court orders

#
  1. 1.This suit be stayed pending the hearing and determination of Mombasa ELC No. E049 of 2023; T.S.S, Investment Limited & 3 others v Bank of Africa & 6 others.
  2. 2.The costs of this application be in the cause.

Authorities

#

Legislation

  • Civil Procedure Act Cap 21Sections 1A, 1B, 3, 3A & 6
  • Banking ActNot specified (breach of statutory duty)

Cases cited (6)

  • Kenya Wildlife Service vs James Mutembei
    (2019) eKLR
  • Harman Singh & Others vs Mistri
    (1971) EA 122
  • Jadva Karsan vs Harnam Singh Bhogal
    (1953) 20 (1) EACA 74
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    2015 eKLR
  • Regina Wanjiru Mwago & Another vs Lucy Wairimu Gichuhi & 2 Others
    2019 eKLR
  • Henderson vs Henderson
    (1843-60) ALL E.R 378
Jurisdiction invoked
Sections 1A, 1B, 3, 3A & 6 of the Civil Procedure Act Cap 21

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nur & 3 others v Tahir Sheikh Said Investments Limited; Shami Motors Limited (Interested Party) (Enviromental and Land Originating Summons 162 of 2018) [2024] KEELC 3712 (KLR)", Case Analysis (2024). Not stated in judgment (Mombasa ELC suit filed 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3712/eng@2024-04-23

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