Waro (Suing as the Legal Representative and Administrator of the Estate of Mumba Chome Waro (Deceased)) v Juba & 3 others (Environment & Land Case 49 of 2023) [2025] KEELC 1002 (KLR)
The bottom line
#Kenya's Environment and Land Court chose to consolidate two overlapping land suits in Kilifi rather than striking one out, keeping everyone's claims alive.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice under Section 6 of the Civil Procedure Act
The sub judice doctrine was not fully attracted because the plaintiff was not a party to the earlier Kilifi suit, though the same suit property was in issue there
The court adopted the Supreme Court's statement of the sub judice test and noted its earlier ruling of 23 May 2024 had found not all conditions met. The plaintiff had applied to be joined in the Kilifi case, and the issues were not identical since this suit raised a succession issue. The court preferred consolidation to striking out.
Whether the suit is an abuse of court process amounting to forum shopping
The court did not strike out the suit; it treated the proliferation risk as best cured by consolidation of the two files
While citing authority that multiplicity of actions on the same matter between the same parties is an abuse, the court found the parties and issues were not identical. The justice of the matter lay in consolidating the suits so all issues and parties are heard on merit, avoiding incongruent outcomes.
What remedy is appropriate where two suits over the same property are pending
Transfer of this matter to the Kilifi court for consolidation with Kilifi MELC No. 49 of 2020 under section 18 of the Civil Procedure Act
Exercising the powers under section 18 of the Civil Procedure Act, and guided by the Lekuruito authority, the court ordered transfer for consolidation rather than stay or striking out, to avoid conflicting outcomes over Kilifi/Roka/794.
Legal principles established
#- Under sections 17 and 18 of the Civil Procedure Act the High Court may transfer a suit to another subordinate court when the justice of the case demands
- A party invoking res sub judice must establish multiple suits over the same subject matter, one instituted earlier, before courts of competent jurisdiction, between the same parties or their representatives
Court orders
#- 1.The application dated 19th September 2024 seeking stay or striking out of the suit is declined
- 2.This matter be transferred to the Kilifi Court to be consolidated and heard with Kilifi MELC No. 49 of 2020
- 3.Costs to abide by the decision in the Kilifi matter
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act (transfer and withdrawal of suits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waro (Suing as the Legal Representative and Administrator of the Estate of Mumba Chome Waro (Deceased)) v Juba & 3 others (Environment & Land Case 49 of 2023) [2025] KEELC 1002 (KLR)", Case Analysis (2025). Not stated in the judgment (Malindi ELC matter; related suit Kilifi MELC No. 49 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1002/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.