Muluhya v Mwungu & another (Environment and Planning Miscellaneous Application E002 of 2025) [2026] KEELC 723 (KLR)
The bottom line
#The High Court in Vihiga dismissed a bid to halt a land case, because the earlier duplicate case had already been withdrawn and the application was filed in the wrong court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to stay proceedings in Vihiga SPM ELC No. E011 of 2025 when the application was filed in this court rather than the trial court
- 2.Whether the filing of Vihiga MC ELC No. 11 of 2025 while Hamisi PM ELC No. 30 of 2020 was pending amounts to a multiplicity of suits warranting a stay
- 3.Whether the Replying Affidavit sworn by Counsel for the respondent offends the rules on affidavits and should be struck out
Key legal issues
#Improper forum for the stay application
The application was improperly before this court as it should have been filed before the trial court whose proceedings were sought to be stayed, and no explanation for the choice of forum was given.
The court noted that no explanation was offered for filing the stay application in this court rather than before the trial court presiding over the suit whose proceedings were targeted. This rendered the application improperly before the court, an independent ground for dismissal in addition to lack of merit.
Multiplicity of suits as ground for stay
The ground of multiplicity of suits fell away because the Hamisi suit had been withdrawn, as evidenced by the Notice of Withdrawal dated 1/9/2025 exhibited to the Replying Affidavit.
The applicant's premise was that Hamisi PM ELC No. 30 of 2020 remained pending, so that the Vihiga suit constituted a multiplicity of suits over the same subject matter. The respondent exhibited a Notice of Withdrawal dated 1/9/2025 and a letter dated 15/10/2025 showing the Hamisi suit was withdrawn, defeating the factual basis of the application.
Validity of an affidavit sworn by counsel
A Replying Affidavit sworn by counsel is not objectionable where it deposes to matters within counsel's own knowledge, namely documents authored by counsel's law firm, in line with Order 19 rule 3(1) of the Civil Procedure Rules.
The applicant submitted that the Replying Affidavit sworn by Oye Ashioya Advocate offended the rules of evidence because affidavits should be sworn by the party, not counsel. The court applied Order 19 rule 3(1) of the Civil Procedure Rules, finding that the matters deposed to - the Notice of Withdrawal and the letter of 15/10/2025, both authored by counsel's law firm - were within counsel's personal knowledge.
Legal principles established
#- An application for stay of proceedings ought ordinarily be filed before the trial court whose proceedings are sought to be stayed
- A stay of proceedings premised on multiplicity of suits fails where the earlier suit has been withdrawn
- An affidavit sworn by counsel deposing to matters within counsel's own knowledge, such as documents authored by counsel's law firm, does not offend Order 19 rule 3(1) of the Civil Procedure Rules
Court orders
#- 1.The application is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act and Article 159(2) of the Constitution of Kenya 2010
Relief refused
#Stay of Vihiga SPM ELC No. E011 of 2025 pending hearing and determination of Hamisi PM ELC No. 30 of 2020
The Hamisi suit had been withdrawn, removing the multiplicity of suits, and the application was improperly filed before this court instead of the trial court
Striking out of the Replying Affidavit sworn by Counsel for the respondent
The affidavit deposed to matters within Counsel's own knowledge (documents authored by Counsel's law firm), consistent with Order 19 rule 3(1) of the Civil Procedure Rules
Costs
Costs of the application to the respondent (application dismissed with costs to the respondent)
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.
I find that the application is not only improperly before this court but also that it lacks merit. The application is therefore hereby dismissed with costs to the respondent.
No explanation was given for filing the application herein and not before the trial court of the suit whose proceedings are sought to be stayed.
It shows that the suit at Hamisi court has since been withdrawn hence the issue of multiplicity of suits does not arise.
the said Afidavit does not ofiend the law as submitted on behalf of the applicant
Issues in the judgment
#Recurring typographical rendering of 'offend' as 'ofiend'/'ofiend' and 'Affidavit' as 'Afidavit' in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muluhya v Mwungu & another (Environment and Planning Miscellaneous Application E002 of 2025) [2026] KEELC 723 (KLR)", Case Analysis (2026). Vihiga MC ELC No. 11 of 2025 (application therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/723/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.