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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 923 (KLR)

Ngetich v Chepkurui & 2 others (Environment and Land Appeal E007 of 2024) [2025] KEELC 923 (KLR)

Environment and Land Court
27 February 2025
870 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to strike out a lawsuit filed while a similar case existed, ruling the earlier case had been withdrawn and striking out is not automatic.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Iten (L. N. Waithaka, J) determined two applications to strike out the plaintiff's suit: one dated 13th December 2024 by the 1st defendant and one dated 17th December 2024 by the 2nd defendant. Both applicants contended that the suit was sub judice Iten CMC ELC Case No. 036 of 2024, the 2nd defendant adding that the suit was scandalous, frivolous, vexatious, brought in bad faith and fatally defective. The plaintiff opposed, deponing that the Iten lower court suit had been withdrawn/discontinued before the present suit was filed. In written submissions the 2nd defendant conceded the withdrawal but argued, citing Judith Cherono Mosonik v Dickson Kipkemoi Kiplagat Changwony (2019) eKLR, that the proper withdrawal procedure was not followed since the instant suit was filed before formal withdrawal, and suggested a stay pending payment of costs under Order 25 Rule 4 of the Civil Procedure Rules. The court held that the non-compliance argument was not pleaded as a ground and could not be entertained under Order 2 Rule 6, which prohibits departure from pleadings. It further held, obiter, that mere filing of a suit during the pendency of another does not automatically warrant striking out; stay or consolidation may be ordered instead. Since the defendants could not show a pending suit when they applied, the court dismissed both applications with costs to the plaintiff/applicant.

Key legal issues

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01

Whether a suit filed while a similar suit is pending in a subordinate court must be struck out as sub judice

Holding

No; striking out is not automatic, and where the prior suit has been withdrawn there is no pending suit to found a sub judice application

Reasoning

The court held that the law does not mandate striking out a later suit merely because it was filed during the pendency of an earlier suit between the same parties; in appropriate cases the court may stay or consolidate the suits. Further, the defendants could not demonstrate that any suit remained pending when they filed their applications, since the lower court suit had been withdrawn.

p. 2
02

Whether the court could consider the alleged non-compliance with the withdrawal procedure where it was not pleaded as a ground

Holding

The court declined to consider it, holding parties cannot depart from their pleadings

Reasoning

Although the 2nd defendant raised in submissions the argument that the withdrawal of the lower court suit did not follow the procedure in the Judith Cherono Mosonik case, none of the applicants had pleaded that as a ground in their applications. Relying on Order 2 Rule 6 of the Civil Procedure Rules, the court held that raising it at submissions stage was an unauthorized departure from the pleadings.

p. 2

Legal principles established

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  • Mere filing of a suit during the pendency of another suit between the same parties over the same or similar issues does not automatically lead to striking out the latter suit; the court may instead stay or consolidate the suits.
  • Parties are bound by their pleadings and may not raise grounds on submissions that were not pleaded in support of their application.

Court orders

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  1. 1.The applications dated 13th December 2024 and 17th December 2024 are dismissed
  2. 2.Costs of the applications to the plaintiff/applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 4
  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 2 Rule 6

Cases cited (1)

  • Judith Cherono Mosonik (Suing as the administrator of the Estate of Andrew Kiprotich Chepkwony & another vs. Dickson Kipkemoi Kiplagat Changwony & another
    (2019) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (specific provision not stated in the judgment)

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, "Ngetich v Chepkurui & 2 others (Environment and Land Appeal E007 of 2024) [2025] KEELC 923 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/923/eng@2025-02-27

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