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ELCStruck OutNakuru ELC E083 of 2024· [2025] KEELC 1130 (KLR)

Mbiyu v Mpoe & 23 others (Environment and Land Case E083 of 2024) [2025] KEELC 1130 (KLR)

Environment and Land Court
6 March 2025
1,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Nakuru court struck out a land dispute filed while an earlier case over the same property was already pending, so the older case must proceed alone.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Ombwayo J) dealt with two competing applications in a land dispute over Muthera Farm LR No 8669/3 Mau Narok. The plaintiff, an administrator of the estate of Mbiyu Koinange (deceased), sought a permanent injunction restraining the 1st and 2nd Defendants from leasing the suit land to the 3rd to 24th Defendants and restraining the latter from invading, cultivating or excavating topsoil pending determination of the suit. The 1st and 2nd Defendants, the first of whom claimed to be co-administrator of the estate of Kikenyi Ole Mpooe, the alleged registered proprietor, applied to strike out the plaint and the plaintiff's application on the ground that the dispute was already pending in Nakuru ELC E013 of 2020, contravening Sections 6 and 7 of the Civil Procedure Act. The court dismissed the plaintiff's application, holding on the authority of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib that a permanent injunction can only issue after the substantive suit is heard on the merits and the prayer was therefore premature. On the striking-out application, the court applied Section 6 of the Civil Procedure Act and the Supreme Court's formulation of the sub judice test in Kenya National Commission on Human Rights v Attorney General, finding that Nakuru ELC E013 of 2020 was pending, concerned the same suit property, involved a co-administrator of the plaintiff, and sought similar orders. Parallel litigation would offend the sub judice rule and the overriding objective. The court struck out the suit, ordering costs for the striking out but that each party bear its own costs of the application.

Key legal issues

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01

Whether the plaintiff's application for permanent injunction was merited

Holding

Dismissed as premature; a permanent injunction cannot issue on a temporary application before the substantive suit is heard

Reasoning

The court noted the plaintiff had already sought permanent injunction in prayers 4 and 5 of the plaint and the suit was yet to be heard on merit. Relying on Kenya Power & Lighting Co. Limited v Sheriff Molana Habib, it held a perpetual injunction is a decree granted after evidence is tendered at the hearing of the suit, and therefore the interlocutory prayer was premature and without merit.

p. 3
02

Whether the present suit is sub judice and an abuse of process given the pending Nakuru ELC E013 of 2020

Holding

Yes; the suit was struck out because the same subject matter between parties claiming under the same title was pending in the earlier suit before the same court

Reasoning

The court applied Section 6 of the Civil Procedure Act and the Supreme Court's test for sub judice. It found Nakuru ELC E013 of 2020 was pending, related to the same suit property, that the plaintiff in that suit was a co-administrator of the plaintiff here, and that the orders sought were similar. Parallel litigation would violate the sub judice rule and the overriding objective.

p. 4

Legal principles established

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  • A permanent injunction is granted only upon hearing of the suit on the merits and cannot issue on an interlocutory application
  • Where two suits between the same parties over the same subject matter are pending before courts of competent jurisdiction, the later suit ought to be stayed or struck out under the sub judice rule (Section 6, Civil Procedure Act)

Court orders

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  1. 1.The plaintiff's application dated 27th December, 2024 seeking a permanent injunction is dismissed
  2. 2.The 1st and 2nd Defendants' application dated 21st January, 2025 is allowed and the suit (Nakuru ELC E083 of 2024) is struck out for being sub judice
  3. 3.Each party shall bear its own costs of the application dated 21st January, 2025
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land; the judgment itself does not expressly cite the provision

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, "Mbiyu v Mpoe & 23 others (Environment and Land Case E083 of 2024) [2025] KEELC 1130 (KLR)", Case Analysis (2025). Nakuru ELC E083 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1130/eng@2025-03-06

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