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ELCDismissedNotice of Motion dated 17th February, 2025 (in the main suit pending at the Environment and Land Court, Kwale)

Passenga Limited & another v Mwangi (Environment and Land Case E022 of 2023) [2025] KEELC 6322 (KLR)

Environment and Land Court of Kenya
24 September 2025
4,925 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kwale court ruled a land fraud case must continue despite a related succession appeal, because the two cases deal with different legal questions.

What this practically means

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Executive summary

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The Defendant/Applicant, Lucy Mumbi Mwangi, moved the Environment and Land Court at Kwale by Notice of Motion dated 17th February 2025 under Sections 5 and 6 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking a declaration that the Plaintiffs' suit concerning parcel Kwale/Galu Kinondo/1492 is sub judice, and a stay of proceedings pending the hearing of her appeal before the Court of Appeal against Muchelule J's ruling in Nairobi High Court Succession Cause No. 758 of 2014 (Estate of Peter Rhule), in which she was found not to be a wife of the deceased. She relied on the stay of execution granted by the Court of Appeal (Okwengu, Ali-Aroni and Mativo JJA) on 27th September 2024 in Civil Appeal (Application) No. E804 of 2022. The 1st and 2nd Plaintiffs/Respondents opposed, contending the suit concerned fraudulent transfer of the parcel from Passenga Limited to the Applicant, not ownership or succession. The court framed three issues: whether the application was merited, entitlement to relief, and costs. Reviewing the sub judice doctrine under Section 6 and authorities including KNCHR v AG, Margaret Wachu Karuri, David Ndii and Muchanga Investments, the court held the issues in this suit (ownership and fraud) had no nexus with the succession appeal, that stopping the suit would be unwarranted, and that the application lacked merit. The application was dismissed with costs to the Plaintiffs, and a Pre-Trial Conference was set for 17th November 2025 with hearing on 4th March 2026. Note: the ruling contains an internally contradictory passage stating the court lacked jurisdiction under Section 6.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion application dated 17th February, 2025 was merited
  2. 2.Whether parties are entitled to the reliefs sought
  3. 3.Who bears the costs of the Notice of Motion dated 17th February, 2025

Key legal issues

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01

Whether the suit is sub judice under Section 6 of the Civil Procedure Act

Holding

Not sub judice - the issues in this suit (fraudulent transfer and ownership of the suit property) differ from the succession issues before the High Court and Court of Appeal

Reasoning

The court distinguished between succession of the property (before the High Court and Court of Appeal) and ownership and fraud (before the ELC). Since the subject matters are different, Section 6 is not triggered. The court found the application lacked the elements of abuse of process and noted the application should have concerned ownership and disposition, which takes precedence over estate distribution especially where third parties are involved.

p. 9
02

Whether the application amounts to an abuse of court process

Holding

No abuse of process found; the elements set out in Muchanga Investments were absent

Reasoning

The court applied the test in Muchanga Investments Ltd v Safaris Unlimited on abuse of judicial process, which requires lack of bona fides and a frivolous, vexatious or oppressive use of process. From the onset the court saw no such elements in the application. Multiplicity of actions on the same matter between the same parties is an abuse, but here the matters were held not to be the same.

p. 8
03

Who bears the costs of the application

Holding

Costs awarded to the Plaintiffs/Respondents as costs follow the event under Section 27(1)

Reasoning

The court reaffirmed the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, citing Harun Mutwiri, KUCFAW v Bidco and Hussein Muhumed Sirat. The Defendant failed to prove the merits of her application, so the successful Plaintiffs were entitled to costs.

p. 9

Legal principles established

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  • The sub judice rule bars courts from trying matters directly and substantially in issue in a previously instituted suit between the same parties, to prevent multiplicity and conflicting decisions
  • For sub judice to apply, the issues in the former proceedings must be directly and substantially the same as those in the latter suit
  • Filing new and separate cases despite an existing similar case on the same subject matter amounts to an abuse of court process

Court orders

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  1. 1.The Notice of Motion dated 17th February, 2025 be and is hereby found to lack merit and the same is dismissed with costs
  2. 2.Pre-Trial Conference on 17th November, 2025 in accordance with Order 11 of the Civil Procedure Rules, 2010; hearing on 4th March, 2026 by physical means
  3. 3.Costs of the Notice of Motion application dated 17th February, 2025 awarded to the Plaintiffs/Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 5 and 6 of the Civil Procedure Act, Cap. 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 (application invoking sub judice bar); suit before the Environment and Land Court under its statutory jurisdiction

Relief refused

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Declaration that the suit is sub judice under Section 6 of the Civil Procedure Act

Issues in this suit (fraudulent transfer of Parcel No. Kwale/Galu Kinondo/1492) have no nexus with the succession appeal and stay application before the Court of Appeal

p. 8

Stay of proceedings in the instant suit pending determination of the Court of Appeal appeal

Ownership and fraud issues fall squarely within the ELC's jurisdiction; ownership and disposition take precedence over distribution of the estate

p. 9

Costs

Application dismissed with costs to the Plaintiffs/Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Notice of Motion dated 17th February, 2025 be and is hereby found to lack merit and the same is dismissed with costs.
p. 9Final orders - dismissal of the sub judice/stay application
That the costs of the Notice of Motion application dated 17th February, 2025 to be awarded to the Plaintifi/Respondent herein.
p. 9Final orders - costs
the issue in this suit is the fraudulent transfer of Parcel No. Kwale/Galu Kinondo/1492 to herself from Passenga Limited. There is no basis of stopping the main case from proceedings as the ownership is not sub - judice.
p. 9Sub judice inapplicable - different subject matter
The purpose of this rule is to prevent courts of concurrent jurisdiction from entertaining parallel proceedings in respect of the same subject matter between the same parties.
p. 6Purpose of the sub judice rule
For this reason, this court having found that it is barred by the operation of law and in particular, Section 6 of the Civil Procedure Act, it lacks the requisite authority to hear and determine this suit.
p. 8Passage inconsistent with the court's ultimate holding (see data quality flag)

Issues in the judgment

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material

The judgment contains an internally contradictory finding: paragraph 23 states the court found itself barred by Section 6 and lacking jurisdiction, yet the court ultimately dismisses the application and allows the suit to proceed

minor

Submissions were never accessed by the court despite directions that the application be disposed of by written submissions

minor

Inconsistent date cited for the Court of Appeal stay ruling - paragraph 8(h) refers to a Ruling 'of 20th September 2024' while elsewhere it is 27th September 2024

minor

Gendered pronouns for the Applicant alternate between 'he' and 'her' in the recitation of the affidavit

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, "Passenga Limited & another v Mwangi (Environment and Land Case E022 of 2023) [2025] KEELC 6322 (KLR)", Case Analysis (2025). Notice of Motion dated 17th February, 2025 (in the main suit pending at the Environment and Land Court, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6322/eng@2025-09-24

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