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ELCStruck OutNot stated in the judgment (Nairobi Environment and Land Court suit)· [2018] KEELC 125 (KLR)

Jacktone Nyende Obuyu v Penina Mbithe Mbithi & another [2018] KEELC 125 (KLR)

Environment and Land Court
20 December 2018
SOS. Okong'o
1,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute suit because the same fight was already before the Machakos High Court — file once, not twice.

What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 2nd September 2016 seeking a temporary injunction to restrain the 1st defendant from interfering with his ownership and quiet possession of Plots 244, 245, 246, 247, 252, 253, 254 and 255 excised from Plot No. 439, Joska Selele area off Kangundo road, which the 1st defendant claimed formed part of Mavoko Town Block 3/6091. The plaintiff alleged he purchased the plots from the 2nd defendant in 2003, received ownership and beacon certificates, built a residential home and was subsequently subjected to electricity disconnection, fencing, invasion and attempted eviction. The 1st defendant, the registered proprietor of Mavoko Town Block 3/6091, opposed the application through a preliminary objection and replying affidavit, contending that the plaintiff had filed a similar suit, Machakos HCCC No. 28 of 2015, Winnie Nyambura & 75 others v Peninah Mbithe Mbithi and Mbukoni Holdings Limited, in which he was claimant No. 66, making the present suit an abuse of process; she also alleged fraud by the 2nd defendant and material non-disclosure. The court heard the preliminary objection and application together by way of written submissions. Comparing the reliefs in the two suits, the court found the matters directly and substantially the same between the same parties, barred by Section 6 of the Civil Procedure Act. Relying on Republic v Chairman District Alcoholic Drinks Regulation Committee ex parte Detlef Heier, the court held that a party must withdraw a prior similar suit before filing a new one and that the plaintiff's unexplained duplication was an abuse of process. The preliminary objection was upheld; the suit and the application were struck out with costs to the 1st defendant. The injunction was therefore never considered on its merits.

Key legal issues

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Whether the suit was barred by Section 6 of the Civil Procedure Act (sub judice) and constituted an abuse of court process

Holding

Yes. The suit raised the same issues and sought similar reliefs as the pending Machakos HCCC No. 28 of 2015 between the same parties, and the plaintiff offered no explanation for filing it; the preliminary objection was upheld and the suit struck out.

Reasoning

The court compared the reliefs sought in the Machakos suit (declaration of ownership of Mavoko Town Block 3/6091, transfer, permanent injunction) with those sought in the present suit and found they were substantially the same between the same parties. The plaintiff did not rebut the contention that he was claimant No. 66 in the Machakos suit. Section 6 of the Civil Procedure Act bars trial of a suit where the matter is directly and substantially in issue in a previously instituted suit between the same parties. Absent any explanation, filing the duplicate suit was an abuse of process.

p. 2

Legal principles established

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  • A party who wishes to file a suit similar to an existing suit must first withdraw the earlier suit; filing a multiplicity of suits over the same subject matter is an abuse of court process which the court should stop using its inherent jurisdiction.

Court orders

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  1. 1.The 1st defendant's Notice of Preliminary Objection dated 4th October 2016 is upheld
  2. 2.The plaintiff's suit together with the Notice of Motion dated 2nd September 2016 is struck out with costs to the 1st defendant as an abuse of the process of the court

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (4)

  • Giella v. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Kenya Commercial Finance Co. Ltd v. Afraha Education Society
    EA (2001) 1 E.A 86
  • Republic v Chairman District Alcoholic Drinks Regulation committee & 4 others ex parte Detlef Heier & another
    [2013] eKLR
  • Winnie Nyambura & 75 others v Peninah Mbithe Mbithi and Mbukoni Holdings Limited (Machakos HCCC No. 28 of 2015)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; the judgment does not cite a specific 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, "Jacktone Nyende Obuyu v Penina Mbithe Mbithi & another [2018] KEELC 125 (KLR)", Case Analysis (2018). Not stated in the judgment (Nairobi Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/125/eng@2018-12-20

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