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ELCStruck OutNot stated in the ruling (ELC suit at Machakos; related criminal case Mavoko MCCR/E1119/2024, Republic v Peter Meti Ndunda)

Mulwa v Ndunda & 2 others (Environment & Land Case E067 of 2022) [2025] KEELC 1300 (KLR)

Environment and Land Court
18 March 2025
1,242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The court struck out an application to halt a criminal land-fraud case because the prosecutors were never asked to be heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Koross, J.) determined a notice of motion dated 1/10/2024 by the 1st defendant, Peter Meti Ndunda, seeking a stay of criminal proceedings in Mavoko MCCR/E1119/2024, Republic v Peter Meti Ndunda, in which he was charged with obtaining registration of LR No. 25960 by false pretence contrary to Section 320 of the Penal Code. He contended his title was LR No. 29826 (IR No. 177827), that ownership of the suit property was yet to be determined in the civil suit, that the ELC alone had jurisdiction over land ownership, and that he had filed a counterclaim. The plaintiff opposed, stating he had pursued complaints since 2012 through the Ministry of Lands, DCI, IPOA and the Ombudsman, that the DCI found the 1st defendant culpable, and that the ODPP prosecuting the criminal case should have been joined by miscellaneous application. Only the 1st defendant filed submissions, framing two issues. The court first addressed the non-joinder of the ODPP and the investigating offices. Relying on Section 193A of the CPC permitting parallel proceedings, and on Article 50 of the Constitution and the natural justice principles in Kidero v Waititu (SC), it held the offices conducting the criminal investigations and prosecution had a right to be heard on the motion but were not parties. The court found the motion incompetent, struck it out with costs to the plaintiff, and directed a mention for further directions on 5/6/2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ODPP and other government offices participating in the criminal proceedings needed to be joined in the application for a stay of proceedings
  2. 2.Whether the criminal proceedings in Mavoko MCCR/E1119/2024 should be stayed pending the determination of this suit
  3. 3.Who bears the costs of the motion

Key legal issues

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01

Whether the ODPP and related investigative offices had to be joined before the court could grant a stay of criminal proceedings

Holding

Yes; their non-joinder rendered the motion incompetent and it was struck out

Reasoning

The court held that although the ELC has jurisdiction to stay criminal proceedings, the offices conducting the criminal investigations and prosecution were not parties to the civil suit. Since the outcome of the motion would directly affect the criminal case they handle, they had a constitutional right to a fair hearing under Article 50, underpinned by the audi alteram partem rule. The court agreed with the plaintiff that a miscellaneous application joining the ODPP would have been the appropriate vehicle.

p. 3
02

Whether parallel civil and criminal proceedings over the same subject matter are permissible

Holding

Yes; Section 193A of the Criminal Procedure Code bars a stay, prohibition or delay of criminal proceedings merely because the same matter is in issue in civil proceedings

Reasoning

The court noted that the law does not bar concurrent civil and criminal proceedings over the same subject matter. Section 193A CPC provides that the fact that a matter in issue in criminal proceedings is also directly or substantially in issue in pending civil proceedings is not a ground for any stay, prohibition or delay of the criminal proceedings. This framework framed the court's assessment of the 1st defendant's stay application.

p. 3
03

Jurisdiction of the ELC over land ownership disputes and stay applications

Holding

The ELC has exclusive jurisdiction over environment and land matters, including ownership and title, and both counsel concurred it could entertain an application for stay of criminal proceedings

Reasoning

The court confirmed that its jurisdiction flows from Article 162(2) of the Constitution and Section 13 of the ELC Act, conferring exclusive jurisdiction over all matters relating to environment and land, including use, ownership, tenure, title and occupation. The 1st defendant had argued only this court could determine ownership; the plaintiff countered that the criminal charge was a distinct issue. The court did not reach the merits because of the non-joinder.

p. 3

Legal principles established

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  • Parallel civil and criminal proceedings over the same subject matter are permitted; the pendency of a civil suit is not a ground for staying criminal proceedings
  • An application to stay criminal proceedings cannot be granted without joining the prosecuting and investigating offices, whose right to a fair hearing is constitutionally protected

Court orders

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  1. 1.The notice of motion dated 1/10/2024 was found incompetent and struck out
  2. 2.Costs of the motion to the plaintiff
  3. 3.Matter to be mentioned for further directions on 5/6/2025

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act

Relief refused

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Order of stay of the criminal proceedings in Mavoko MCCR/E1119/2024, Republic v Peter Meti Ndunda pending hearing and determination of this suit

The motion was incompetent because the ODPP and the investigating/prosecuting offices, whose criminal case would be directly affected, were not joined or given a right to be heard

p. 3

Costs

Costs of the motion to the plaintiff

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Ultimately, I am inclined to find the motion dated 1/10/2024 incompetent, and I hereby strike it out with costs to the plaintifi. This matter shall be mentioned for further directions on 5/6/2025.
p. 3Final orders - striking out of the motion
Firstly, our law does not bar the conduct of parallel civil and criminal proceedings over the same subject matter, and this is found in Section 193A of the Criminal Procedure Code (CPC).
p. 3Parallel criminal and civil proceedings
This right to a fair hearing is underpinned in Article 50 of the Constitution.
p. 3Right to be heard of prosecuting offices

Issues in the judgment

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minor

The names of the plaintiff and the other defendants, and the civil suit number, are not stated in the excerpt, making full party and case identification impossible

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mulwa v Ndunda & 2 others (Environment & Land Case E067 of 2022) [2025] KEELC 1300 (KLR)", Case Analysis (2025). Not stated in the ruling (ELC suit at Machakos; related criminal case Mavoko MCCR/E1119/2024, Republic v Peter Meti Ndunda). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1300/eng@2025-03-18

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