https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3497

Mwaniki v Khandid & 2 others (Environment and Land Case E011 of 2024) [2026] KEELC 3497 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3497 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E011 of 2024 CA Ochieng, J June 9, 2026 Between Anne Gathigia Mwaniki Plaintiff and Suleyman Mohamed Khandid Defendant and Kiambu Dandora Farmers Company Limited 1st Third party Abdulahi Muigai Muiruri 2nd Third party Ruling 1.What is before the Court for determination is the 1st Defendant’s Notice of Motion application dated 9th February 2026 in which he seeks the following Orders:a.Spent.b.Spent.c.Spent.d.That this Honourable court be pleased to issue an order of stay of proceedings staying the instant suit pending hearing and determination of ELC /PET/47 OF 2011 Abdulahi Muiruri Muigai & 5 others v Attorney General & National Land Commission, Amboseli Court Limited & 11 others (Interested Parties).e.That costs of this application be in the cause. 2.The application is premised on grounds on its face and on the Defendant’s supporting affidavit. He avers that on 13th December 2018, he entered into a sale agreement for Plot No. 206, Zone II Sossian, hived from LR No. 11379/3 with the 2nd Third Party. Further, that the said Third party and five (5) others, as trustees of Kiambu Dandora Farmers Company Limited filed ELC/PET/47 OF 2011 (Abdullahi Muiruri Muigai & 5 others v Attorney General & National Land Commission, Amboseli Court Limited & 11 others (Interested Parties) in 2011 in respect of LR No. 11379/3. 3.He asserts that the 2nd Third Party was joined in this suit in his capacity as the vendor, who sold him land and the 1st Third party was joined in its capacity as the initial beneficial owner of LR No. 11379/3. 4.He avers that the Plaintiff in this matter in turn alleges to have purchased her property, LR No. 15400/77 hived off LR No. 11379/3 from Amboseli Court Limited, which also lays a claim over the suit property in ELC Pet 47 of 2011, thus for the proper and effective determination of this suit, ELC PET 47 OF 2011 ought to be determined first as the root of the property subject matter in this suit is the subject in the said matter. 5.He points out that there are many other cases touching on LR No. 11379/3, which have been stayed, such as ELC 241 of 2017 (Net Gas & Energy Limited v Stanley Kirimi Kibwi and Charles Waweru that had its judgement deferred pending hearing and determination of ELC PETITION 47 OF 2011. He contends that if proceedings are allowed to continue, this court will be embarrassed by giving conflicting decisions. Response 6.The application is opposed by the Plaintiff who avers that it is purposely filed to frustrate the hearing of the suit, which is exclusively in respect of her title, LR 15400/77 and as per this court’s sanctioned survey report dated 8th August 2024, conducted to identify the parcel, the parcel has nothing to do with the alleged LR 11379/3. Further, that she is a stranger to ELC PETITION 47 OF 2011 and the alleged third parties have not filed pleadings and the Defendant cannot purpose to speak for them. 7.The application was canvassed by way of written submissions. Submissions 8.The Defendant submits that he has met the threshold for stay of proceedings in the context of Section 6 of the Civil Procedure Act and as reiterated in Republic v National Land Commission Ex Parte Kihumbu Thairu; Kiambu Dandora Farmers Limited (Interested Party) [2022] KEELC 1567 (KLR) and Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR. 9.He reiterates that this suit and Petition 47 of 2011 revolve around the same subject matter, being the root of title and ownership of LR No. 11379/3. Further, that while parties in both suits are not identical, they are essentially litigating under the same title and both suits are pending before the same court. He insists that there is no prejudice that will be occasioned to the Defendant if the stay is granted. 10.On her part, the Plaintiff submits that the Defendant’s claim against third parties is a civil claim recoverable in a civil suit, hence there is no nexus between his claim for indemnity against them with the subject matter of ELC PET 47 of 2011 cited to be the basis for his application to stay proceedings. She insists that her claim before this court is all about trespass by the Defendant on her property. 11.On the Defendant’s allegation that the suit revolves around L.R 11379/3, she submits that the same amounts to a statement of fact which cannot be introduced in submissions, therefore the application lacks merit and is purposely brought to frustrate hearing. 12.To buttress her averments, the Plaintiff relied on the following decisions: Global Tours & Travels Limited v Five Continents Travel Limited [2015] KECA 789 (KLR), Githaiga v Mwangi (Civil Appeal E064 of 2022) [2024] KEHC 13449 (KLR) and Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR). Analysis and Determination 13.Having considered the instant Notice of Motion application including the respective affidavits and parties’ submissions, the sole issue for determination is whether the Defendant has demonstrated grounds for stay of the instant suit pending hearing and determination of ELC PET 47 OF 2011 Abdulahi Muiruri Muigai & 5 others v Attorney General & National Land Commission, Amboseli Court Limited & 11 others (Interested Parties). 14.The Defendant contends that the suit property originates from LR No. 11379/3, which is also the subject of ELC Petition No. 47 of 2011. He further claims that the Plaintiff allegedly acquired LR No. 15400/77 from Amboseli Court Limited, which is also a party in the said petition. 15.He argues that the root of title and ownership of the mother parcel from which he derives his interest should first be determined in ELC Petition No. 47 of 2011, where the Third Parties herein whom he claims from, claim an interest in the said parcel, thus this suit is sub judice. 16.On her part, the Plaintiff insists that her claim is purely one of trespass over LR No. 15400/77 and that the court-sanctioned survey report dated 8th August 2024, established that her parcel has no relation to LR No. 11379/3. She argues that she is not a party to ELC Petition No. 47 of 2011. 17.She contends that the Defendant’s claim against Third Parties is a civil claim recoverable in a civil suit, hence there is no nexus between his claim for indemnity against them with the subject matter of ELC PET 47 of 2011. 18.On sub judice, Section 6 of the Civil Procedure Act bars a court from proceeding with a matter where the issues in dispute are directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title before a competent court. It provides that:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 19.The Supreme Court stated as follows in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR:“…. The purpose of the sub judice rule is to stop the filing of multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of sub judice must therefore establish that; there is more than one suit over the same subject matter, that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 20.In Kenya Wildlife Service v James Mutembei [2019] eKLR, it was held that:“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay, and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases… Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is no cause of action in law or equity…..” 21.In this instance I note the fulcrum of the dispute revolves around Plot No. 206, Zone II Sossian and allegations of trespass thereon. The Defendant claims Plot No. 206, Zone II Sossian was hived from LR No. 11379/3. I note the Plaintiff did not expressly dispute that the suit property in dispute emanates from LR No. 11379/3, which is also the subject of ELC Petition No. 47 of 2011. On perusal of the Court record, I note the Plaintiff acquired her property from Amboseli Court Limited. This Court takes judicial notice of the fact that Amboseli Court Limited and Kiambu Dandora Farmers are all parties in Petition No. 47 of 2011, who are also parties herein. It is my considered view that since there is a dispute herein as to ownership of the suit land including allegations of trespass, it is pertinent if the root of title is determined. Further, since there is already an active case being ELC Petition No. 47 of 2011, whose fulcrum revolves around the ownership of the mother title where the suit land emanated from, noting that several cases have been stayed pending the outcome of the said Petition, and with the Defendant seeking indemnity from the third parties, I find that the Defendant has actually demonstrated grounds for stay of the instant suit pending hearing and determination of ELC PET 47 OF 2011 Abdulahi Muiruri Muigai & 5 others v Attorney General & National Land Commission, Amboseli Court Limited & 11 others (Interested Parties). 22.Based on the facts as presented while relying on the legal provisions cited and associating myself with the decisions quoted, I find the instant Notice of Motion application dated the 9th February, 2026 merited and will allow it in the following terms:a.That an order of stay of proceedings be and is hereby issued staying the instant suit pending hearing and determination of ELC /PET/47 OF 2011 Abdulahi Muiruri Muigai & 5 others v Attorney General & National Land Commission, Amboseli Court Limited & 11 others (Interested Parties).b.That costs of this application be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JUNE, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Ms Chege for PlaintiffMs Onchoka for Saad for DefendantCourt Assistant: Joan