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ELCOtherOriginating Summons dated 19th December 2024 (Busia ELC)· [2025] KEELC 867 (KLR)

Ekisa & 3 others v Ojwang & another (Enviromental and Land Originating Summons E040 of 2024) [2025] KEELC 867 (KLR)

Environment and Land Court
27 February 2025
BOBoaz N. Olao
2,942 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Busia court stopped a duplicate land case, ruling that whoever files second over the same land must wait for the first case to finish.

What this practically means

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Executive summary

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The Applicants filed an Originating Summons dated 19th December 2024 claiming the suit parcels South Teso/Angoromo/18353 to 18358 by adverse possession, asserting over twelve years of open occupation. Together with the summons they filed a Notice of Motion under Order 40 Rule 1 and Order 53 Rule 3 of the Civil Procedure Rules seeking a temporary injunction restraining the Respondents from interfering with their occupation pending trial, supported by the affidavit of the 2nd Applicant. The 4th to 7th Respondents filed a Notice of Preliminary Objection and a replying affidavit contending that the suit was sub judice two earlier pending matters: Busia ELC Case No 187 of 2017, concerning the parent parcel No 705 from which the suit parcels were subdivided, in which the Applicants are related to parties; and Busia CMC ELC Case No E172 of 2024, filed on 17th December 2024 by the 4th and 5th Respondents against the 1st Applicant over parcel 18356. The court found the preliminary objection was a pure point of law meeting the Mukisa Biscuit threshold. Perusing the pleadings, it held the suit res judicata the 2017 case and sub judice the 2024 case, invoking Section 6 of the Civil Procedure Act and the Supreme Court's elaboration of the sub judice rule in KNCHR v AG. Declining to strike out or dismiss the suit as sought, the court stayed it pending determination of the earlier suits, vacated the ex-parte injunction of 22nd December 2024 (which had also lapsed), declined to consider the injunction Motion, and awarded costs to the 4th to 7th Respondents.

Key legal issues

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01

Whether the suit is sub judice / res judicata the earlier pending suits

Holding

The suit is both res judicata Busia ELC Case No 187 of 2017 and sub judice Busia CMC ELC Case No E172 of 2024; the subject matter of the earlier suit, parcel No 705, has been subdivided into the suit parcels, and the Applicants are related to and claim under parties in the earlier suits

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 or those claiming under them. The earlier suits were filed before this suit. The Applicants are children of parties in Busia ELC No 187 of 2017, and the 4th and 5th Respondents are plaintiffs against the 1st Applicant in Busia CMC ELC No E172 of 2024 over one of the suit parcels.

p. 5
02

Whether the Preliminary Objection met the Mukisa Biscuit threshold

Holding

Yes, because the objection that the suit is sub judice raises a pure point of law

Reasoning

The court found the objection satisfied the test in Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd, since the sub judice issue is a matter of law and did not depend on the ascertainment of facts.

p. 4

Legal principles established

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  • Where two or more suits between the same parties over the same subject matter are pending before competent courts, the suit filed later ought to be stayed pending determination of the earlier suit

Court orders

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  1. 1.This suit is sub-judice ELC Case No 187 of 2017 and CMC ELC Case No E172 of 2024 and is ordered stayed
  2. 2.The ex-parte orders of temporary injunction issued on 22nd December 2024 are vacated having also already lapsed by effluxion of time
  3. 3.The Notice of Motion dated 19th December 2024 is not available for consideration the suit having been declared sub-judice
  4. 4.Costs to the 4th, 5th, 6th and 7th Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 53 Rule 3

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd -v- West End Distributors LTD
    1969 E.A 696
  • Kenya National Commission on Human Rights -v- A.G, Independent Electoral & Boundaries Commission & 16 others
    2020 eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; Civil Procedure Act Section 6 (sub judice)

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, "Ekisa & 3 others v Ojwang & another (Enviromental and Land Originating Summons E040 of 2024) [2025] KEELC 867 (KLR)", Case Analysis (2025). Originating Summons dated 19th December 2024 (Busia ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/867/eng@2025-02-27

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