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ELCStruck OutNot stated in the provided judgment· [2024] KEELC 6150 (KLR)

Lwambi & 2 others (The Petitioners Through Mbuyu Wa Chapa Community Water Kiosk CBO) v National Land Commission & 5 others (Environment & Land Petition E016 of 2023) [2024] KEELC 6150 (KLR)

Environment and Land Court
25 September 2024
NMN.A. Matheka
1,136 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa struck out a land petition because refiling a rejected case instead of appealing is an abuse of court process.

What this practically means

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Executive summary

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The County Attorney raised a six-ground preliminary objection against a petition and notice of application dated 2nd February 2024, contending inter alia that the court lacked original jurisdiction, that the application offended Section 16 of the Government Proceedings Act and Sections 8, 9 and 14 of the Access to Information Act, that the matter was sub judice given Mombasa ELC Petition No. E016 of 2023 (Jonathan Dzuya Saha & 45 others vs National Land Commission & 2 others), and that the petition failed to meet the constitutional pleading threshold. The court framed two issues: whether the preliminary objection had merit, and costs. Applying Mukisa Biscuits and the IEBC vs Cheperenger principles, it held that jurisdiction and sub judice are pure questions of law fit for a preliminary objection. Applying Section 6 of the Civil Procedure Act, the court found the 'matter in issue' - not merely the prayers - substantially identical between the two suits: the parties were similar, the same advocate (Mr. Tindi) acted, and the subject matter was the same Kwa Jomvu land at Mbuyu wa Chapa. The prior petition had been struck out by Kibunja J on 10th July 2024 for premature invocation of the court's jurisdiction before the National Land Commission determined the pending claim. Rather than appeal that ruling, the petitioners filed a fresh petition dated 13th December 2023, which the court condemned as forum shopping and an abuse of process. The court found the petition and application res judicata, struck them out, and awarded costs. Note an internal inconsistency in the dates given for the prior ruling (July 2024 versus 'July 2023').

Key legal issues

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01

Whether the court should entertain the preliminary objection on jurisdiction and sub judice

Holding

Yes - jurisdiction and sub judice are pure points of law suitable for determination as a preliminary objection

Reasoning

Applying Mukisa Biscuits and the Cheperenger test, the court found that both jurisdiction and sub judice raise questions of law requiring no ascertainment of facts, and therefore properly fall for determination before the merits.

p. 2
02

Whether the petition is sub judice / res judicata

Holding

The petition is substantially the same as Mombasa ELC Petition No. E016 of 2023 between similar parties over the same Kwa Jomvu, Mbuyu wa Chapa subject matter, and is res judicata and sub judice

Reasoning

The court perused the prior file, found similar parties (same advocate), the same subject matter, and a prior ruling by Kibunja J striking out the earlier petition for premature invocation of the court's jurisdiction before NLC pronounced itself. Filing a fresh petition instead of appealing was forum shopping and abuse of process.

p. 3
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What disposition follows

Holding

The petition and application are struck out with costs

Reasoning

Having found the suit res judicata and an abuse of process, the only proper course was to strike out both the petition and the application, with costs to the respondent.

p. 3

Legal principles established

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  • The sub judice rule under Section 6 of the Civil Procedure Act compares the 'matter in issue', not merely the prayers sought
  • Filing a fresh petition instead of appealing a prior adverse ruling amounts to forum shopping and abuse of court process and renders the fresh suit res judicata

Court orders

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  1. 1.The petition and application are found to be res judicata
  2. 2.The petition and application are struck out
  3. 3.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Government Proceedings ActSection 16
  • Access to information Act No. 31 of 2016Sections 8, 9 and 14

Cases cited (5)

  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 696
  • Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others
    (2015) eKLR
  • Kenya Bankers Association vs Kenya Revenue Authority
    2019 eKLR
  • In Re the matter of the Interim Independent Electoral Commission
  • Jonathan Dzuya Saha & 45 others vs National Land Commission & 2 others
    Mombasa Environment and Land Court Petition No. E016 of 2023
Jurisdiction invoked
Not expressly stated; original jurisdiction of the Environment and Land Court invoked by the petition

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, "Lwambi & 2 others (The Petitioners Through Mbuyu Wa Chapa Community Water Kiosk CBO) v National Land Commission & 5 others (Environment & Land Petition E016 of 2023) [2024] KEELC 6150 (KLR)", Case Analysis (2024). Not stated in the provided judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6150/eng@2024-09-25

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