Gikera v National Land Commission & 2 others (Environment & Land Case E089 of 2023) [2024] KEELC 6714 (KLR)
The bottom line
#The Environment and Land Court in Thika struck out a land compensation suit because the plaintiff, who owned only one small plot, sued over land he had no connection to.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this suit is sub judice in light of Thika ELC No. 50 of 2018
- 2.Whether the Plaintiff has locus standi to bring this suit in respect of land parcel Ruiru Kiu Block 2 (Githunguri) 2297
- 3.Whether the suit is an abuse of the Court process and should be struck out
Key legal issues
#Whether the suit was res sub judice under Section 6 of the Civil Procedure Act
The sub judice plea failed because the issues and reliefs in Thika ELC No. 50 of 2018 were different, the defendants were not identical, and the plaintiff was not litigating under the same title.
Applying the three-part test, the court found this suit sought compensation to unidentified rightful owners while Thika ELC 50 of 2018 sought declaration of ownership and reversion of land; only two of four defendants were common; and the plaintiff sued in a different capacity. Section 6 therefore did not bar the suit.
Whether the Plaintiff had locus standi to sue over the entire suit land
The Plaintiff failed to demonstrate any connection to the suit land; his own right of action, if any, was confined to Residential Plot No. P-6, not the entire parcel.
The plaint did not show the plaintiff's ownership or interest in the suit land nor identify the 'rightful owners' to be compensated. In Thika ELC 50 of 2018 he is described as owner of Plot No. P-6 only, so he could not claim reliefs over the whole of Ruiru Kiu Block 2 (Githunguri) 2297.
Whether the suit constituted an abuse of the Court process
The suit was an abuse of process and vexatious because it was brought over the same suit land during the pendency of the earlier suit, and was struck out.
The court held that a plaintiff seeking reversion of land in one suit cannot turn around and seek compensation over the same land in another suit while the first is pending. The court invoked its inherent powers to protect its dignity and struck out the suit.
Legal principles established
#- For sub judice to succeed, three tests must be satisfied: the matter must be directly and substantially in issue in the earlier suit; the suits must be between the same parties or parties claiming under them; and the parties must be litigating under the same title.
- Locus standi is a jurisdictional issue distinct from cause of action; a party without standing cannot be heard at all.
- A litigant cannot institute parallel proceedings over the same subject matter during the pendency of an earlier suit; the court has inherent power to strike out such an abuse.
Court orders
#- 1.The suit is struck out as an abuse of the Court process
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; application under Sections 1A, 1B & 6 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Striking out of the suit on the ground of sub judice under Section 6 of the Civil Procedure Act
The issues, parties and title in Thika ELC No. 50 of 2018 were found not to be directly and substantially the same as in this suit
Costs of the application against the Plaintiff
The Court ordered each party to bear their own costs
Costs
Each party to bear their own costs.
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.
The upshot of the forgoing is that this suit amounts to vexing the Court’s time and an abuse of Court process and it is hereby struck out.
Each party to bear their own costs.
A Plaintifi seeking reversion of their land to their names cannot again turn around and seek compensation in a difierent suit arising from the same suit land during the pendency of the former suit.
Accordingly, the Plaintifi’s right of action if any, can only be in respect of Plot no P-6 and not for the entire suit land as claimed in the instant plaint.
To my mind, the issues in controversy in both suits and the reliefs sought in the respective suit are directly and substantially difierent.
Issues in the judgment
#The judgment refers inconsistently to the earlier suit as 'Thika ELC No. 50 of 2018' and as 'Thika ELC No. 50 of 2019 (sic)'
The judgment refers to the Plaintiff as 'the appellant' at paragraph 15 despite being a first-instance matter
Paragraph numbering in the judgment is disordered (paragraph 25 appears before paragraph 23)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikera v National Land Commission & 2 others (Environment & Land Case E089 of 2023) [2024] KEELC 6714 (KLR)", Case Analysis (2024). Not stated in the judgment (ELC suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6714/eng@2024-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.