Mulwa v Ndunda & 2 others (Environment & Land Case E067 of 2022) [2025] KEELC 1300 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the criminal proceedings in Mavoko MCCR/E1119/2024 should be stayed pending the determination of this suit
- 3.Who bears the costs of the motion
Key legal issues
#Whether the ODPP and related investigative offices had to be joined before the court could grant a stay of criminal proceedings
Yes; their non-joinder rendered the motion incompetent and it was struck out
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.
Whether parallel civil and criminal proceedings over the same subject matter are permissible
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
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.
Jurisdiction of the ELC over land ownership disputes and stay applications
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
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 1/10/2024 was found incompetent and struck out
- 2.Costs of the motion to the plaintiff
- 3.Matter to be mentioned for further directions on 5/6/2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#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
Costs
Costs of the motion to the plaintiff
Quotable passages
#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.
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).
This right to a fair hearing is underpinned in Article 50 of the Constitution.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndunda v Mulwa & 5 others (Environment and Land Miscellaneous Case E067 of 2025) [2026] KEELC 3270 (KLR)[2026] KEELC 3270 (KLR)2 Jun 2026
- Ndunda v Mulwa & 5 others (Environment and Land Miscellaneous Case E067 of 2025) [2026] KEELC 3270 (KLR)[2026] KEELC 3270 (KLR)2 Jun 2026applied
Cite this brief
#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.