https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3270

Ndunda v Mulwa & 5 others (Environment and Land Miscellaneous Case E067 of 2025) [2026] KEELC 3270 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3270 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Miscellaneous Case E067 of 2025 AY Koross, J June 2, 2026 Between Peter Meti Ndunda Applicant and Justus Muthui Mulwa 1st Respondent Machakos Land Registrar 2nd Respondent The Attorney General 3rd Respondent Office of the Director of Criminal Investigations (ODPP) 4th Respondent National Police Service 5th Respondent Directorate of Criminal Investigations 6th Respondent Ruling 1.This is a ruling on two notices of motion, one dated 2 July 2025, by the applicant and another by the 1st respondent, dated 7 November 2025. In the former motion, the applicant has sought the following reliefs:a.Spent.b.Spent.c.There be an order of stay of the criminal proceedings in Mavoko MCCR/E1119/2024, Republic versus Peter Meti Ndunda, pending the hearing and determination of Machakos ELC No. E067 of 2022: Justus Muthui Mulwa v Peter Meti Ndunda, Machakos Land Registrar & The Attorney General by this Honourable Court.d.This Honourable Court do issue such further or other orders that in its discretion may deem fair and just in the circumstances.e.Costs of this application be provided for. 2.The motion is based on the grounds listed on the face thereof and the supporting affidavit of the applicant, sworn on the instant date. In summary, he asserts that the 1st respondent commenced criminal proceedings in MCCR/E1119/2024 (criminal case) against the applicant at the Mavoko Law Courts, alleging acquisition of title by false pretences. At the same time, the Environment and Land Court (ELC) at Machakos is handling Machakos ELC No. E067 of 2022 (ELC Case), a case to determine the lawful owner of LR No. 29826 (IR No. 177827) and LR No. 25960 (disputed parcels)-two titles relating to the same parcel of land. 3.That the criminal case proceedings are premature and prejudicial, as they involve the Mavoko Court addressing the validity of the disputed title, a matter reserved for the ELC, whose proceedings have not yet begun. It is argued that the criminal case should be stayed until the ELC determines ownership, as this decision will directly affect the criminal case’s viability. In the ELC case, he has sought to join Nicholas Muchene Njau as a 4th defendant, yet criminal proceedings have not been preferred against this person. These selective criminal proceedings raise concerns about impartiality and motive in the criminal case, and that the ELC case remains pending and unheard. This motion is strenuously opposed. 4.The 1st respondent filed a notice of preliminary objection (PO) dated 19 September 2025, which raised factual issues. When this was brought to his counsel's attention as the court found the PO incompetent, he filed the latter motion, which will be addressed later in this ruling. 5.In addition to the PO, he filed a replying affidavit in opposition to the motion, where he briefly asserts that, as the plaintiff in the ELC case, he noticed activities on his land as early as 2012, which became more pronounced when the applicant began fencing it. In December 2012, this apprehension was formally communicated to the Permanent Secretary of the Ministry of Lands, and subsequent reports were made to the Director of Criminal Investigations, the Independent Policing Oversight Authority, and the Office of the Ombudsman; thus, allegations that criminal proceedings were maliciously instigated against the applicant are unfounded. 6.Further, the prosecution of criminal matters falls solely under the Office of the Director of Public Prosecutions, and the various reporting authorities on crimes are responsible for investigating and deciding whether to institute criminal proceedings, not individual complainants. Therefore, it is inaccurate to suggest any individual is controlling the prosecution in this matter. 7.Moreover, the central issue in the ELC case is determining the legitimate owner of the disputed properties, while the criminal case focuses on how the applicant obtained ownership documents for the land. A criminal complaint was also registered against Nicholas Muchene Njau, with prosecutorial discretion vested in the 4th respondent. Additionally, the complaint was lodged in 2017, prior to the ELC case being instituted. 8.The 2nd to 6th respondents responded via the replying affidavit of PC Kennedy Lubembe, the 6th respondent’s officer, sworn on 8 October 2025. He informs this court that a complaint was lodged on 20 September 2017 by the 1st respondent regarding the purchase of the uns-residential plot no. 665 at the Kwa Mulinge Scheme in 1999. 9.An investigation was initiated into the authenticity of the 2011 allotment letter, which was purportedly signed by PK Kahuho, who denied issuing or signing the allotment letter in question. Forensic examination of the applicant’s allotment letter and survey documents confirmed that they were inauthentic. Later, the investigation file was forwarded to the Office of the Director of Public Prosecution (ODPP), which charged the applicant in the criminal case with obtaining registration of documents by false pretences, contrary to Section 320 of the Penal Code. Lastly, the ELC's jurisdiction does not interfere with criminal investigations and prosecutions. 10.Without filing a notice to act in person as the 3rd respondent, entered an appearance dated 14 August 2025 and represents all government bodies joined to these proceedings, the ODPP filed grounds of opposition and submissions respectively dated 29 September 2025 and 29 March 2026. Nonetheless, this court finds that these documents contravene Order 9, Rule 8 of the Civil Procedure Rules and they are hereby expunged from the record. 11.As for the latter application, it prays for the following reliefs from this court: -a.THAT this honourable court be pleased to consolidate this case with Machakos ELC No. E067 of 2022: Justus Muthui Mulwa v Peter Meti Ndunda, Machakos Land Registrar and The Attorney General.b.THAT the Court finds that the instant case is res judicata and ought to be dismissed.c.THAT the costs of this application be provided for. 12.The motion relies on the grounds indicated on the face thereof and the supporting affidavit of the counsel, Rodgers Opiyo, sworn on 13 November 2025. Concisely, he asserts that this case is res judicata, as a similar application was previously filed in the ELC case and subsequently dismissed. In delivering its ruling, this honourable court directed that it would not entertain any new applications filed by any party. Therefore, the decision to file the present application as a miscellaneous application appears intended to circumvent the directions issued by this honourable court. Finally, the purpose of seeking consolidation is to allow the court to cross-reference with the ELC file. 13.It was strenuously challenged by the applicant in his replying affidavit of 8 December 2025, informing the court that the ruling delivered by the court on 18 March 2025 in the ELC case struck out his application and was not dismissed as alleged. The ruling did not determine the issues in controversy between the parties with finality but instead restored the matter to the stage it was at prior to the filing of the pleading. The court in the ELC case further agreed that the ODPP, the Directorate of Criminal Investigations (DCI), the Office of the National Police Service, and the Office of the Inspector General are necessary parties and ought to be joined. Therefore, this case is not res judicata. 14.The motions were canvassed by written submissions. The applicant’s were filed by his law firm on record Ms. B M Musau & Co., Advocates LLP, dated 2 March 2026 and notably, another set of submissions was filed by this law firm dated 8 December 2025. As for the 1st respondent, his law firm on record, Ms. Mercy Barasa & Co. Advocates, filed written submissions dated 15 April 2026. 15.Accordingly, having carefully considered the motions, grounds, affidavits, rival submissions, the legal framework, and prevailing jurisprudence, including that relied upon by counsel, the key issue for determination is whether the motions are merited. We proceed. 16.Regarding the 1st respondent's motion, and as submitted by the parties, this is not the first time that a motion of this nature has been filed in this court by the applicant. A similar motion was filed in the ELC case, but it was not heard on the merits and was struck out by a ruling of this court cited as Mulwa v Ndunda & 2 others [2025] KEELC 1300 (KLR). Hence, in agreement with the applicant, the instant proceedings cannot be said to be res judicata, as it has never been heard on the merits. 17.Furthermore, with all due respect to the 1st respondent, his motion on the limb of consolidation constitutes an abuse of court process. In the ELC case, he argued that the applicant’s application was incompetent because some of the respondents herein were not parties to that case, and maintained that it would have been appropriate to initiate stay proceedings as a separate miscellaneous application, thereby allowing the majority of the respondents to participate. The court agreed with him in that ruling, and the relevant excerpt states:“ 21.Although both counsels are in concurrence, this court has jurisdiction to entertain an application for a stay of proceedings including those of a criminal nature, the plaintiff contends this court should have been moved by a miscellaneous application as by doing so, the ODPP which is in the conduct of the criminal proceedings, will be given a right to be heard…Indeed, this court agrees with the plaintiff’s counsel that the ODPP has a stake in the criminal case and probably the Directorate of Criminal Investigations, the Office of National Police Service and or the Office of Inspector General and it would have been appropriate if they were intituled and joined in appropriate proceedings.” 18.The applicant has duly filed the miscellaneous application in accordance with the court’s reasoning. Notwithstanding, the 1st respondent contends that these proceedings ought to be consolidated with the ELC case; it is impermissible for him to arbitrarily adopt inconsistent positions by approbation and reprobation, and his prayer for consolidation is deemed an abuse of court process, as it is vexatious and frivolous. The definition of "abuse of court process" was elucidated in the Court of Appeal case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), which reaffirmed the interpretation as established in two foreign court decisions, as follows:“In BEINOSI v WIYLEY 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohomad CJ, set out the applicable legal principle as follows: -“What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.”Again the Court of Appeal in Abuja, Nigeria in the case of ATTAHIRO v BAGUDO 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.In the Nigerian Case of KARIBU-WHYTIE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e) the concept of abuse of judicial process was defined:-“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice …” 19.Concerning the applicant’s motion and as established in Mulwa v Ndunda (Supra), this court affirms its jurisdiction to entertain applications for a stay of proceedings, including those of a criminal nature, and finds that the arguments presented by the 1st respondent to the contrary do not hold sway. 20.In accordance with our statutes, our law does not prohibit the parallel conduct of civil and criminal proceedings concerning the same subject matter, as provided in Section 193A of the Criminal Procedure Code (CPC). This provision stipulates that, notwithstanding any other written law, the fact that an issue in criminal proceedings is also directly or substantially in dispute in pending civil proceedings shall not constitute grounds for a stay, prohibition, or delay of the criminal proceedings. It is noteworthy that the jurisdiction, procedure, standard of proof, and nature of the final dispositive orders of the two courts, namely, the Environment and Land Court (ELC) and the criminal court, are distinctly different. 21.As for jurisprudence, courts have consistently affirmed that the court ought not to usurp the constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. In Diamond Hasham Lalji & Another v A.G. & 4 others [2018] eKLR, the Court of Appeal stated:-“(34)It is also indubitable that the constitutional prosecutorial power of DPP is reviewable by the High Court as Article 165(2)(d)(ii) of the Constitution ordains. However, the doctrine of separation of powers should be respected and the courts should not unjustifiably interfere with the exercise of discretion by DPP unless it is exercised unlawfully by, inter alia, failing to exercise his/her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual.The DPP is entitled to make errors within his constitutional jurisdiction and the decision will not be reviewed solely on the ground that it was based on misapprehension of facts and the law. (Matululu and Anor v. DPP [2003] 4 LRC 712). Further, authority show that courts are generally reluctant to interfere with prosecutorial decisions made within jurisdiction.” 22.Similarly, in the case of Chris Achieng & Others vs. Director of Public Prosecution & Another; Jude Anyiko (Interested Party) 2021 eKLR, the court enumerated the following exceptional and non-exhaustive instances where a court may issue a stay on criminal proceedings: -“(i)Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court;(ii)Where the quashing of the impugned proceedings would secure the ends of justice;(iii)Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;(iv)Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged;(v)Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.(vi)The prosecution is not in public interest;(vii)The prosecution is not in the interests of the administration of justice;(viii)The prosecution is oppressive, vexatious and an abuse of the court process;(ix)The prosecution amounts to a breach of rights and fundamental freedoms;(x)The investigation and prosecution amounts to abuse of power and discretion and is aimed at achieving an ulte­rior or improper motive;(xi)The investigation and the prosecution are tainted with illegality, irrationality and procedural impropriety;(xii)The investigation and prosecution is in gross contraven­tion of the Constitution and the law;” 23.Based on the documents submitted by the parties as attachments to their affidavits, it is uncontested that the bodies responsible for criminal investigations, most of whom are respondents herein, initiated their inquiries well before the filing of the ELC case, and it is only that the applicant was charged for the criminal offence in 2024. Evidence from some of the applicant’s documents demonstrate that the Directorate of Criminal Investigations (DCI) was involved in the investigations as early as 7 December 2020. Additionally, the court was provided with a forensic document examiner’s report prepared by the DCI dating back to 2019. The ELC case was commenced in 2022. 24.Accordingly, this court finds no evidence of malice or abuse of process in those criminal proceedings and also finds that they were not an afterthought. There is nothing unlawful in the exercise of the bodies' statutory and constitutional authority to conduct criminal investigations, make arrests, and charge and prosecute the applicant. Suffice it to say, courts ought to exercise restraint and afford state organs, officers, and public officials leeway in fulfilling their constitutional duties. 25.This court has considered the various grounds presented by the applicant as to why the criminal proceedings should be stayed and finds that none of them meets the legal threshold. In any case, the person mentioned as Nicholas Muchene Njau is not a party to the ELC case. The applicant has not shown this court that the ongoing criminal proceedings, in which he is allowed to contest, are completely without a basis. As earlier stated, it is permissible for the two cases to be heard concurrently, and the existence of the ELC case is not a bar to the hearing and determination of the criminal case. 26.Guided by the law and judicial precedent, and for the reasons and findings set out above, the notices of motion dated 2 July 2025 and 7 November 2025 are found not to be merited and are hereby dismissed. The notice of preliminary objection dated 19 September 2025 is hereby struck out. Each party shall bear their own costs. The file is effectively marked as closed.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 2ND DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE02.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Thuku for Dr. Musau for applicant.Mr. Opiyo for 1st respondent.No appearance for other parties.