[2018] KEELC 4734 (KLR)
The court found that the plaintiff had already raised the claim of adverse possession as a counter-claim in Machakos HCCC No. 26 of 2011, which involved the same parties and subject matter. Filing a separate suit on the same ground was improper and amounted to an abuse of the court process. The court held that the...
Source-derived case information.
- Citation
- [2018] KEELC 4734 (KLR)
- Parties
- Plaintiff: Jackson Mbithi Nzeki; Defendant: Willy Wambua Mweki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 158 of 2011
- Procedural Posture
- Originating Summons / Ruling on Application to Strike Out Suit
- Outcome
- suit struck out with costs
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Abuse of Court Process, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Mbithi Nzeki
Plaintiff
Willy Wambua Mweki
Defendant
Procedural Posture
Originating Summons / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the present suit is an abuse of the court process due to the existence of a prior suit involving the same parties and subject matter.
- 2 Whether the plaintiff is entitled to maintain a separate suit for adverse possession when the same claim is raised as a counter-claim in the earlier suit.
Ratio Decidendi
The court found that the plaintiff had already raised the claim of adverse possession as a counter-claim in Machakos HCCC No. 26 of 2011, which involved the same parties and subject matter. Filing a separate suit on the same ground was improper and amounted to an abuse of the court process. The court held that the present suit should not have been filed and accordingly struck it out with costs to the defendant.
Court Disposition
suit struck out with costs
Orders
- The suit is struck out with costs to the defendant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 158 OF 2011 (O.S)
JACKSON MBITHI NZEKI ..........................................PLAINTIFF
VERSUS
WILLY WAMBUA MWEKI ......................................DEFENDANT
RULING
1. In the Application dated 20th September, 2012, the Defendant is seeking for the following orders:
a. That this suit be struck out with costs as the subject matter herein, land parcel Mavoko Town Block 3/3205, is also the subject matter in Machakos HCCC No. 26 of 2011, between the two parties herein and filed prior to this suit. This suit is therefore an abuse of the court process.
b. Costs of this Application be borne by the Plaintiff/Respondent.
2. The Application is premised on the grounds that on 7th February, 2011, the Defendant filed Machakos HCCC No. 26 of 2011 in respect of parcel of land known as Mavoko Town Block 3/3205 together with an Application for injunction; that the said Application was heard inter-partes; that this suit raises similar issues as ELC No. 26 of 2011 and that the suit is an abuse of the court process.
3. In response, the Plaintiff deponed that the legal issues raised in the current Originating Summons are different from ELC No. 26 of 2011 and that the only way of handling the matters is by consolidating them.
4. The Plaintiff and the Defendant’s advocates filed brief submissions which I have considered.
5. This suit was commenced by way for an Originating Summons pursuant to Order 37 Rule 7 of the Civil Procedure Rules. The Plaintiff herein is claiming for the suit land by prescriptive rights or adverse possession.
6. On the other hand, the Defendant herein filed Machakos HCCC No. 26 of 2011 claiming that he is the registered proprietor of the suit land and that the Plaintiff herein should be evicted from the suit land.
7. Indeed, the Defendant’s Application for injunction is HCCC No. 26 of 2011 was heard inter-partes and the Plaintiff herein was restrained from interfering with the suit land.
8. I have seen a copy of the Defence and Counter-claim that was filed by the Plaintiff herein in HCCC No. 26 of 2011. In his Counter-claim, the Plaintiff herein pleaded that he is the one entitled to the suit land by virtue of having lived on the land for more than 26 years. Having pleaded that he is entitled to the suit land by virtue of the doctrine of adverse possession, it was improper and an abuse of the court process for the Plaintiff herein to file a separate suit claiming for the same land on the same ground.
9. For those reasons, I find that this suit should not have been filed in the first place.
10. In the circumstances, I strike out the suit with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 26TH DAY OF JANUARY, 2018.
O.A. ANGOTE
JUDGE