Ethics and Anti-Corruption Commission v Mbasu & 15 others; Kenya Revenue Authority (Interested Party) (Environment & Land Case 21 of 2023) [2024] KEELC 4675 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is sub judice under section 6 of the Civil Procedure Act given the pending Mombasa ELC No. 55 of 2008
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.
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.
Whether the suit is an abuse of the process of the court warranting striking out under Order 2 Rule 15(1)(d)
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.
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.
Legal principles established
#- 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
#- 1.The 11th to 14th Defendants' application dated 11th December 2023 to strike out the suit as an abuse of process is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Section 1A & 3A of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.