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ELCPartially AllowedELC LC E106 of 2024· [2025] KEELC 4842 (KLR)

Kinuthia v Montina & 4 others (Environment & Land Case E106 of 2024) [2025] KEELC 4842 (KLR)

Environment and Land Court
26 June 2025
2,801 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Where the same land dispute is filed in two Kenyan courts, the court hearing the later case will normally stop those proceedings until the earlier case is decided.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (L. Komingoi, J) determined a Notice of Motion dated 2nd December 2024 by the Plaintiff, Monica Wambui Kinuthia, seeking a stay of proceedings in Kajiado MCELC No. E163 of 2024, a suit filed by the 2nd and 3rd Defendants in the Chief Magistrate's Court over the same property, Kajiado/Ntashart/2107. The applicant purchased the property in September 2013 for Kshs. 19,500,000 and was registered owner; she discovered in October 2024 that the property had been registered in favour of the 2nd and 3rd Respondents, who claimed to have purchased it in April 2021 and alleged her title was fraudulently acquired. Both parties staked competing ownership claims. The applicant argued the Lower Court suit offended Section 6 of the Civil Procedure Act on sub-judice, being between the same parties over the same subject matter, and that this suit, filed 17th October 2024, was first in time; she further contended the Lower Court lacked pecuniary jurisdiction as the property was valued at Kshs. 28,000,000. The Respondents countered that the parties and causes of action differed, service was effected late, the Lower Court suit had progressed with a ruling pending, and a stay would be prejudicial. The Court framed three issues: sub-judice, pecuniary jurisdiction, and costs. Applying the Supreme Court's test in Kenya National Commission on Human Rights v Attorney General, it found the two suits were between the same parties over the same property, and that the later suit must be stayed pending determination of the earlier one. On pecuniary jurisdiction, the Court held such a challenge must be raised before the court whose jurisdiction is questioned. The Court stayed the Lower Court proceedings and ordered that costs of the application abide the outcome of the main suit.

Key legal issues

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01

Whether the Lower Court suit MCELC E163 of 2024 is res sub-judice to this suit

Holding

Yes. The two suits involve the same parties claiming ownership of the same property, and this suit was first in time.

Reasoning

The Court applied the test for sub-judice from the Supreme Court's decision in KNCHR v Attorney General: same subject matter, one suit instituted before the other, both pending before competent courts, and same parties or their representatives litigating under the same title. The plaintiffs in the Lower Court suit are the 2nd and 3rd Defendants here, both suits concern ownership of parcel Kajiado/Ntashart/2107, and this suit was filed first, on 17th October 2024.

p. 5
02

Whether stay of proceedings in the Lower Court suit should issue

Holding

Yes. As this suit was first in time, the subsequent suit must be stayed awaiting its determination.

Reasoning

Relying on the Supreme Court's holding that the later-filed suit between the same parties over the same subject matter ought to be stayed, the Court held that the fact that the Lower Court suit had progressed and that a ruling was imminent did not displace the sub-judice rule. It rejected the argument that non-service or the applicant's participation in the Lower Court proceedings negated the stay.

p. 6
03

Whether the Lower Court lacks pecuniary jurisdiction over the suit property valued at Kshs. 28,000,000

Holding

The issue is not for this Court; a challenge to jurisdiction must be raised before the court whose jurisdiction is in question.

Reasoning

The applicant argued the Lower Court lacked pecuniary jurisdiction as the property was valued at Kshs. 28,000,000, exceeding the Chief Magistrate's Court's limit. The Court declined to determine this, holding that jurisdictional questions should be raised, addressed and determined by the court whose jurisdiction is challenged, and refused to grant stay on that basis.

p. 4

Legal principles established

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  • When two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the later-filed matter ought to be stayed pending determination of the earlier suit
  • A party invoking res sub-judice must establish multiple suits over the same subject matter, that one suit was instituted before the other, that both are pending before competent courts, and that the parties are the same or litigating under the same title

Court orders

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  1. 1.Proceedings in MCELC E163 of 2024 be and are hereby stayed, pending the hearing and determination of ELC LC E106 of 2024
  2. 2.The costs of the application do abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR; [2020] KESC 54 (KLR)
  • David Ndii & others versus Attorney General & Others
    [2021] eKLR
  • Kamoro v Bushline Properties Company Limited & another
    [2025] KEELC 135 (KLR)
  • Kenya Trade and Development Company Limited v Bashari
    [2023] KEELC 20420 (KLR)
  • Republic v Ag Clerk of Nairobi City County Assembly & another Ex-parte Robert Khamala Situma & 18 others
    [2021] eKLR
Jurisdiction invoked
Articles 48 and 50 of the Constitution of Kenya; Sections 1A, 1B, 3, 3A and 6 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Kinuthia v Montina & 4 others (Environment & Land Case E106 of 2024) [2025] KEELC 4842 (KLR)", Case Analysis (2025). ELC LC E106 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4842/eng@2025-06-26

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