[2017] KEELC 1383 (KLR)
The court found that the issues raised in the current Petition were identical to those in Malindi ELC No. 78 of 2014, where the Petitioner and others had already sought and been denied injunctive relief regarding the same property. The court emphasized that Section 6 of the Civil Procedure Act prohibits the trial of...
Source-derived case information.
- Citation
- [2017] KEELC 1383 (KLR)
- Parties
- Petitioner: Ahmed Mohamed Obo; Respondent: Kenya Airports Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 15 of 2016
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- petition struck out as abuse of court process
- Judges
- OA Angote, JO Olola
- Legal Topics
- Abuse of Court Process, Multiplicity of Suits, Compulsory Acquisition, Right to Property, Injunctive Relief, Constitutional Rights Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Mohamed Obo
Petitioner
Kenya Airports Authority
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the filing of the current Petition constitutes an abuse of the court process.
- 2 Whether the issues raised in the Petition are directly and substantially in issue in a pending suit between the same parties.
- 3 Whether the Petitioner is entitled to seek the same reliefs previously denied in Malindi ELC No. 78 of 2014.
Ratio Decidendi
The court found that the issues raised in the current Petition were identical to those in Malindi ELC No. 78 of 2014, where the Petitioner and others had already sought and been denied injunctive relief regarding the same property. The court emphasized that Section 6 of the Civil Procedure Act prohibits the trial of suits where the matter in issue is directly and substantially in issue in a pending suit between the same parties. The court held that the filing of the current Petition, seeking the same reliefs and involving the same parties and subject matter as the pending ELC case, amounted to an abuse of the court process. The appropriate course for the Petitioner was to prosecute the...
Court Disposition
petition struck out as abuse of court process
Orders
- The Petition dated 22nd June, 2016 together with all the Applications therein are hereby struck out with costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
CONSTITUTIONAL PETITION NO. 15 OF 2016
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLES 19, 20, 21, 22, 23, 28, 40(3) , 43 (1) (B) AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF VIOLATION OF THE CONSTITUTION PARTICULARLY ARTICLE 10, 67(2) (E)(V) AND 68(C)(V) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF VIOLATIONS OF SECTION 13 OF THE KENYA AIRPORTS AUTHORITY ACT, CHAPTER 395 OF THE LAWS OF KENYA
AHMED MOHAMED OBO........................................PETITIONER
VERSUS
KENYA AIRPORTS AUTHORITY ...........................RESPONDENT
RULING
1. In the Respondent’s Notice of Preliminary Objection dated 29th August, 2016, the Respondent has averred that the Petition is incompetent and bad in law; that the Petitioner does not have the authority of the other twenty four (24) Petitioners to bring the Petition and that the annexed title document was issued to the Respondent.
2. According to the Respondent, the Petition is otherwise an abuse of the court process, a similar suit having been filed by the Petitioner involving the same cause of action; that this Petition was filed after the Petitioner failed to obtain injunctive orders in Malindi ELC No. 78 of 2014 and that the Petition is in total breach of the public interest involved in the matter.
3. The Preliminary Objection proceeded by way of written submissions which I have considered. I have also considered the authorities on record.
4. The only issue that I am supposed to deal with is if indeed the filing of the Petition is an abuse of the court process.
5. In the Petition, the Petitioner has averred that him together with 24 others are the owners of land known as Portion No. 21 Lamu registered as C.R 35747; that the Respondent had agreed to compensate them for the acquisition of the suit land and that the Respondent disregarded the said promise and offered to compensate them for the crops and buildings that are on the land.
6. In the Petition, the Petitioner has averred that although him and the other 24 individuals obtained a temporary injunction in Malindi ELC No. 78 of 2014, the said orders were not confirmed on technicalities.
7. The reliefs that the Petitioner is seeking are conservatory orders restraining the Respondents from evicting him together with 24 others from the suit property; an order directing the Respondent to compensate him and 24 others and declaration that by evicting them, the Respondent is violating the Constitution.
8. In his Supporting Affidavit, the Petitioner has annexed copy of the grant for portion number 21. The said grant was registered in favour of the Respondent on 14th June, 2002.
9. The Petitioner has also annexed the Minutes of the several meetings that were held between the Respondent and other people claiming the suit property, the letter of allotment that was issued to him and the Ruling of this court in Malindi ELC No. 78 of 2014.
10. In the Ruling of this court in Malindi ELC No. 78 of 2014, this court considered the Application that had been filed by the Petitioner and 24 other Plaintiffs.
11. In the Application, the Plaintiffs sought for injunctive orders against the Respondent in respect to the suit land. The issues that the Plaintiffs raised in the said suit are the same issues that have been raised in the current Petition: that they should be compensated for the suit land before they can vacate.
12. In the Ruling of 12th September, 2014, the court held that the Plaintiffs had not established a prima facie case with chances of success because the suit property was registered in favour of the Respondent. The court also stated that the Plaintiffs could not succeed in their claim of the suit property by virtue of the doctrine of adverse possession.
13. Having dismissed the Application for injunction, the Petitioner cannot move this court to seek for the same orders that he is seeking in Malindi ELC No. 78 of 2014.
14. The law that bars filing a multiplicity of suits is found in Section 6 of the Civil Procedure Act. According to that Section, no court should proceed with the trial of any suit or proceedings in which the matter in issue is directly and substantially in issue between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceedings is pending in the same court.
15. In view of the pending Malindi ELC No. 78 of 2014, I find that the filing of the current Petition by the same parties raising the same issues and seeking the same reliefs is an abuse of the court process. The Petitioner herein should fix ELC case No. 78 of 2011 for hearing and determination.
16. For those reasons, the Petition dated 22nd June, 2016 together with all the Applications therein are hereby struck out with costs.
DATED AND SIGNEDATMACHAKOSTHIS2NDDAY OFMAY, 2017.
O.A. ANGOTE
JUDGE
DATED, DELIVEREDANDSIGNEDATMALINDITHIS12THDAY OFMAY, 2017.
J.O. OLOLA
JUDGE