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ELCDismissedApplication dated 11th December 2023 (within ELC suit, Mombasa)· [2024] KEELC 4675 (KLR)

Ethics and Anti-Corruption Commission v Mbasu & 15 others; Kenya Revenue Authority (Interested Party) (Environment & Land Case 21 of 2023) [2024] KEELC 4675 (KLR)

Environment and Land Court
11 June 2024
1,200 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to strike out an EACC land recovery suit, holding it was not duplicating an older case because the issues and parties differed.

What this practically means

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Executive summary

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The 11th to 14th Defendants applied under Sections 1A and 3A of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules to strike out the plaintiff's suit as an abuse of the process of the court, contending that the suit was sub judice given the pending Mombasa ELC No. 55 of 2008, in which the 11th defendant had sued several occupants of L.R No. Mombasa Island/Block XXVI/1015, with the interested party joined in 2015. The 8th to 10th Defendants separately raised a preliminary objection on wrong joinder, claiming they had been sued personally rather than in their company capacity. The plaintiff, through Alex Mugambi Mbae, responded that it had a statutory mandate under section 11(1)(j) of the EACC Act 2011 and the Anti-Corruption and Economic Crimes Act to recover public land, and that this suit differs from the earlier one. In submissions, the applicants relied on Civicon Ltd, the Kihara Ex parte case and Fremar Construction, while the plaintiff, through Ms Fatuma Abdulrahim, relied on Order 38 rules 1 and 2, the Ndubi case, Benson G. Mutai and Brij Kishore, suggesting consolidation. Matheka J framed two issues: whether the suit was sub judice and what prayers the court could grant. Applying section 6 of the Civil Procedure Act, and adopting the principle that sub judice turns on the matter in issue rather than the prayers sought, the court held that the subject matter and parties differed substantially: this suit challenges the subdivision of Mombasa Island/Block XXVI/269 into several parcels without approved part development plans, while the earlier suit sought vacant possession of three plots. The suit was therefore not sub judice. The application was dismissed with costs in the cause on 11th June 2024.

Key legal issues

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01

Whether the suit is sub judice under section 6 of the Civil Procedure Act given the pending Mombasa ELC No. 55 of 2008

Holding

The suit is not sub judice because the matters in issue and the parties differ substantially; the pending suit seeks vacant possession of three plots while this suit challenges the unlawful subdivision of the parent parcel Mombasa Island/Block XXVI/269.

Reasoning

Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title. The court examined the substance rather than the prayers, found the matters in issue not substantially the same, noted differences in subject matter and parties, and concluded the sub judice rule was not attracted.

p. 3
02

Whether the suit is an abuse of the process of the court warranting striking out under Order 2 Rule 15(1)(d)

Holding

The application lacks merit since the suit is not sub judice; the plaintiff, mandated under the EACC Act 2011 and the Anti-Corruption and Economic Crimes Act, properly pursues recovery of public land with claims distinct from the earlier suit.

Reasoning

The applicants contended the suit duplicated Mombasa ELC 55 of 2008 and amounted to abuse of process. The court rejected this because the plaintiff raised substantial claims challenging subdivision without approved part development plans and abuse of office by the 15th and 16th defendants, claims not before the earlier court. The application was therefore dismissed with costs in the cause.

p. 3

Legal principles established

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  • The sub judice rule under section 6 of the Civil Procedure Act concerns the matter in issue, not the prayers sought in the suits
  • A 'matter' means the subject matter for determination in a legal proceeding, requiring some right, duty or liability to be established

Court orders

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  1. 1.The 11th to 14th Defendants' application dated 11th December 2023 to strike out the suit as an abuse of process is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A & 3A
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Civil Procedure RulesOrder 38 rule 1 and 2
  • Ethics and Anti-Corruption Commission ActSection 11(1)(j)
  • Anti-Corruption and Economic Crimes Actnot specified

Cases cited (8)

  • Civicon Limited vs Kivuwatt Limited & 2 others
    (2015) eKLR
  • R vs Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    (2020) eKLR
  • Fremar Construction Co. Ltd vs Mwakisiti Navi Shah
    (2005) eKLR
  • Ethics and Anti-Corruption Commission vs Ndubi & 3 Others
    ELC 359 of 2015 (2022) KEELC 209 (KLR)
  • Benson G. Mutai v Raphael Gichovi Munene & 4 Others
    (2014) eKLR
  • Brij Kishore vs Brij Singh & Others
    L.R 5922 of 2013
  • Kenya Bankers Association vs Kenya Revenue Authority
    2019 eKLR
  • In Re the matter of the Interim Independent Electoral Commission
Jurisdiction invoked
Section 1A & 3A of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules

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, "Ethics and Anti-Corruption Commission v Mbasu & 15 others; Kenya Revenue Authority (Interested Party) (Environment & Land Case 21 of 2023) [2024] KEELC 4675 (KLR)", Case Analysis (2024). Application dated 11th December 2023 (within ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4675/eng@2024-06-11

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