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ELCPartially AllowedNarok Chief Magistrates Court Case No. E064 of 2022 (Appeal)· [2024] KEELC 5707 (KLR)

Pareiyo & another (Acting as the legal representative of the Estate of Late Senet Ole Pareiyo) v Ntaiya & 5 others (Environment and Land Appeal E004 of 2023) [2024] KEELC 5707 (KLR)

Environment and Land Court
25 July 2024
2,230 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that duplicated land lawsuits should be paused, not thrown out, preserving everyone's right to a final decision.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Narok, delivered by Hon. C.G. Mbogo J on 25th July 2024, against a ruling of Hon. A.N. Sisenda SRM of 17th April 2023 in Narok CMELC No. E064 of 2022. The trial court had struck out the appellants' suit on a preliminary objection by the 1st to 3rd respondents, holding it sub judice in view of Narok ELC Case No. 137 of 2017 concerning parcel 21A Ratia Group Ranch. The appellants sought setting aside of the ruling, reinstatement of their suit and costs. They argued that the subject matter, parties and causes of action in the two suits differed. The 1st respondent maintained that the substance of both suits concerned land emanating from parcel 21A and the same parties were litigating under the same title. The court, applying Section 6 of the Civil Procedure Act, held that the matter was sub judice because parcel 21A was directly and substantially in issue in both suits. However, the court disagreed with the remedy of striking out: since the respondents had a counterclaim on record, the interests of both parties were better served by staying proceedings in the later suit pending determination of the earlier one. The appeal partially succeeded; the striking-out order was substituted with an order of stay of proceedings in CMELC No. E064 of 2022 pending determination of ELC No. 137 of 2017, with each party bearing its own costs.

Key legal issues

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01

Whether the suit was sub judice under Section 6 of the Civil Procedure Act

Holding

The suit was sub judice because the subject matter in ELC No. 137 of 2017 (parcel no. 21A Ratia Group Ranch, from which parcels 1968 and 1969 emanate) was directly and substantially in issue in the later suit

Reasoning

Section 6 bars trial of a suit whose matter is directly and substantially in issue in a previously instituted suit between the same parties or parties claiming under the same title before a competent Kenyan court. The court looked at the substance rather than the form: parcels Cis-Mara/Olchoro/1968 and 1969 emanate from the allocation, subdivision and survey of parcel 21A Ratia Group Ranch, the subject of the earlier suit, and the parties largely overlap.

p. 5
02

Whether striking out was the correct remedy

Holding

Striking out was wrong; stay of proceedings was the appropriate order, particularly given the defendants' counterclaim on record

Reasoning

The court found the trial court erred in striking out the suit rather than staying it. Since the 1st to 3rd respondents had also filed a counterclaim, they equally sought a just determination. Striking out would defeat their claim, whereas a stay of the later proceedings pending the earlier suit protects both parties and avoids conflicting decisions.

p. 5

Legal principles established

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  • Where a suit is found to be sub judice under Section 6 of the Civil Procedure Act, the appropriate order is stay of proceedings of the later suit, not striking it out
  • On a first appeal, the court is entitled to revisit the evidence and arrive at its own conclusion, and will not interfere with findings of fact unless based on no evidence, misapprehension of it, or wrong principles

Court orders

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  1. 1.The order striking out Narok Chief Magistrates' ELC Case No. E064 of 2022 is substituted with an order of stay of proceedings in that suit pending determination of Narok ELC Case No. 137 of 2017
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (6)

  • Kenya National Commission on Human Rights versus Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR)
    [2020] KESC 54 (KLR)
  • Abdulkadir A. Khalif versus Principal Secretary Ministry of Lands & Physical Planning & 4 Others; National Land Commission & Anor (Interested Parties) [2020] eKLR
    [2020] eKLR
  • Hussein versus Odhiambo & 2 Others, Misc ELC E016 of 2021
    Misc ELC E016 of 2021
  • Daniel Kipkemoi Bett & Another versus Joseph Rono [2022] eKLR
    [2022] eKLR
  • Republic versus Paul Kihara Kariuki, Attorney General & 2 Others, Ex-parte Law Society of Kenya [2020] eKLR
    [2020] eKLR
  • Mwanasokoni versus Kenya Bus Service Ltd 1982 – 88 I KAR 278
    1982 – 88 I KAR 278
On appeal from
Chief Magistrates Court, Narok
CMELC No. E064 of 2022
Jurisdiction invoked
First appeal from the Chief Magistrates' Court (Environment and Land jurisdiction); appeal against ruling on preliminary objection under Section 6 of the Civil Procedure Act

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, "Pareiyo & another (Acting as the legal representative of the Estate of Late Senet Ole Pareiyo) v Ntaiya & 5 others (Environment and Land Appeal E004 of 2023) [2024] KEELC 5707 (KLR)", Case Analysis (2024). Narok Chief Magistrates Court Case No. E064 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5707/eng@2024-07-25

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