Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in judgment (ruling on Notice of Motion dated 29th July, 2024)· [2024] KEELC 6918 (KLR)

Fondo (Suing as the legal representative of the Estate of Kahindi Gona Fondo - Deceased) v Ajulu & 10 others (Environment & Land Case 285 of 2017) [2024] KEELC 6918 (KLR)

Environment and Land Court
14 October 2024
5,713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused to kill a property suit, finding res judicata did not apply and instead stayed a duplicate case over the same land.

What this practically means

#

Executive summary

#
The defendants in an Environment and Land Court suit at Mombasa moved the court under a Notice of Motion dated 29th July 2024 seeking striking out of the plaintiff's suit on L.R. 3633/II/MN as res judicata and an abuse of process, citing CMCC (ELC) No. E079 of 2023 (Katana Kahindi Fondo v Suleiman Dawati & 4 others) in which the plaintiff had obtained an ex parte decree. The plaintiff opposed, producing a CTS printout showing the ex parte judgment had been set aside on 26th April 2024 and the suit was pending, and suggesting consolidation. The Court framed three issues: res judicata and sub-judice, jurisdiction and the way forward, and costs. It held that res judicata was not established because the former suit had not been heard and finally decided, the ex parte judgment having been set aside. However, it found the plea of sub-judice made out: multiple suits by the same plaintiff over the same property were pending, risking conflicting outcomes. Rather than striking out this suit, the Court exercised its supervisory jurisdiction under Article 165(6) of the Constitution and stayed the subordinate court suit pending hearing of this suit, noting this suit was older (filed 31st July 2017). It declined to entertain consolidation as it was not raised through a formal application. The defendants' application was vacated and no costs were awarded, the matter being fixed for hearing on 16th December 2024.

Key legal issues

#
01

Res judicata

Holding

Res judicata was not established because the ex parte judgment in CMCC ELC No. E079 of 2023 had been set aside and the matter had not been finally decided

Reasoning

The Court set out the five conditions for res judicata under Section 7 of the Civil Procedure Act, including that the matter must have been heard and finally decided. The defendants produced a decree and warrants, but the plaintiff's CTS printout showed the ex parte judgment was set aside on 26th April 2024 and the suit was ongoing. Without finality, the doctrine could not bar this suit.

p. 5
02

Sub-judice

Holding

The suit offends the sub-judice rule as multiple claims over L.R. 3633/II/MN are pending between the same parties, warranting a stay

Reasoning

The Court found the same suit property was directly and substantially in issue in CMCC ELC No. E079 of 2023 and earlier suits, with the plaintiff a constant party. The subordinate court suit, though ex parte judgment had been set aside, remained pending and not set down for hearing. The Court applied Section 6 of the Civil Procedure Act and exercised its supervisory jurisdiction under Article 165(6) to stay that subordinate court suit pending determination of this suit.

p. 9
03

Jurisdiction and way forward

Holding

Having found itself barred by Section 6 as framed, the Court nonetheless retained supervisory jurisdiction over the subordinate court and chose to stay the later-filed rival proceedings rather than this suit

Reasoning

The Court noted Article 165(3)(a) confers unlimited original jurisdiction and Article 165(6) and (7) confer supervisory jurisdiction over subordinate courts. Guided by the overriding objective under Sections 1A and 1B and the inherent powers under Section 3A of the Civil Procedure Act, it stayed the subordinate court suit pending hearing of this suit and fixed this suit for hearing.

p. 9
04

Costs

Holding

No costs were awarded to either party despite the general rule that costs follow the event

Reasoning

The Court acknowledged that under Section 27(1) of the Civil Procedure Act costs follow the event and the successful party is typically entitled to costs, but exercised its discretion to reserve the power and make no order as to costs on the application.

p. 11

Legal principles established

#
  • Where a matter is sub judice, the remedy is a stay of the suit; the marginal notes in Section 6 of the Civil Procedure Act read 'stay of suit'
  • A party pleading res judicata must provide the actual pleadings in the former suit
  • The High Court's supervisory jurisdiction over subordinate courts should not be used to micromanage or curtail their expeditious disposal of suits

Court orders

#
  1. 1.The Notice of Motion application dated 29th July, 2024 be and is hereby vacated, with the Court thanking the Defendants for bringing into light the multiplicity of cases surrounding the suit property
  2. 2.The suit in CMCC ELC No. E079 of 2023 - Katana Kahindi Fondo v Suleiman Dawati, Hamisi Kadi, Ranson Katuu, Mercy Mwakwani and Samuel Kinyua is hereby stayed pending the hearing and determination of this suit
  3. 3.The parties are at liberty to move the court as they deem fit and how they want to proceed with the suits
  4. 4.This matter be and is hereby fixed for hearing on 16th December, 2024
  5. 5.There shall be no orders as to the costs of the Notice of Motion application dated 29th July, 2024

Authorities

#

Legislation

  • Civil Procedure Act, Cap. 21Section 1A
  • Civil Procedure Act, Cap. 21Section 1B
  • Civil Procedure Act, Cap. 21Section 3
  • Civil Procedure Act, Cap. 21Section 3A
  • Civil Procedure Act, Cap. 21Section 5
  • Civil Procedure Act, Cap. 21Section 6
  • Civil Procedure Act, Cap. 21Section 7
  • Civil Procedure Act, Cap. 21Section 27(1)
  • Civil Procedure Rules, 2010Order 51
  • Civil Procedure Rules, 2010Order 11 Rule 1
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 165(3)(a), 165(5), 165(6), 165(7)

Cases cited (10)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • CK Bett Traders Limited & 2 others v Kennedy Mwangi & another
    [2021] eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
  • Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others
    [2020] eKLR
  • Law Society of Kenya v Centre for Human Rights & Democracy & 12 others
    [2014] eKLR
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 7 of the Civil Procedure Act, Cap. 21; Order 51 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Fondo (Suing as the legal representative of the Estate of Kahindi Gona Fondo - Deceased) v Ajulu & 10 others (Environment & Land Case 285 of 2017) [2024] KEELC 6918 (KLR)", Case Analysis (2024). Not stated in judgment (ruling on Notice of Motion dated 29th July, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6918/eng@2024-10-14

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