[2014] KEELC 249 (KLR)
The court found that the present suit and application for injunction concern the same subject matter and parties as Nakuru HCC No. 267 of 2010, which is still pending. Section 6 of the Civil Procedure Act prohibits the court from proceeding with a suit where the matter in issue is also directly and substantially in...
Source-derived case information.
- Citation
- [2014] KEELC 249 (KLR)
- Parties
- Plaintiff: Rev. Ephraim Waiganjo Karianjahi (Suing on behalf of the registered trustees Full Gospel Churches of Kenya); Defendant: Luka Komu Karanja
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 354 of 2013
- Procedural Posture
- Suit / Ruling on Interlocutory Application for Injunction
- Outcome
- Application for injunction dismissed; suit stayed pending determination of Nakuru HCC No. 267 of 2010; costs awarded to the defendant.
- Judges
- L Waithaka
- Legal Topics
- Res Subjudice, Temporary Injunctions, Church Land Disputes, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Ephraim Waiganjo Karianjahi (Suing on behalf of the registered trustees Full Gospel Churches of Kenya)
Plaintiff
Luka Komu Karanja
Defendant
Procedural Posture
Suit / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the application for a temporary injunction is maintainable in light of a pending suit involving the same subject matter and parties.
- 2 Whether the suit is an abuse of court process under Section 6 of the Civil Procedure Act.
Ratio Decidendi
The court found that the present suit and application for injunction concern the same subject matter and parties as Nakuru HCC No. 267 of 2010, which is still pending. Section 6 of the Civil Procedure Act prohibits the court from proceeding with a suit where the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The plaintiff's disclosure of the earlier suit did not cure the defect. Consequently, the court held that it had no alternative but to dismiss the application for injunction and stay the present suit until the earlier suit is concluded, as proceeding would amount to an abuse of court process.
Court Disposition
Application for injunction dismissed; suit stayed pending determination of Nakuru HCC No. 267 of 2010; costs awarded to the defendant.
Orders
- The application for injunction is dismissed.
- This suit is stayed until Nakuru HCC No. 267 of 2010 is concluded.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE ENVIRORNMENTAND LAND COURT OF KENYA
AT NAKURU
SUIT NO. 354 OF 2013
REV. EPHRAIM WAIGANJO KARIANJAHI
(Suing on behalf of the registered trustees FULLGOSPEL CHURCHES OF KENYA) .................. PLAINTIFF
VERSUS
LUKA KOMU KARANJA …………….……………DEFENDANT
RULING
1. Before me is an application filed by the plaintiff for determination dated 9 May, 2013. The application is opposed.
2. In a nutshell, the application seeks a temporary injunction to restrain the defendant by himself, his agents, servants from interfering, selling, trespassing and or dealing with 1/4 acre in Nyandarua/ Njabini / 5048 (''suit land'') in plaintiff's possession and or interfering with the plaintiff's church services on the suit land in any manner whatsoever pending the hearing and determination of the suit.
3. After several false starts, submissions were eventually filed. The rival parties filed well researched written submissions in support of their respective contentions which l have read and taken into consideration.
4. Briefly and as I understand from the pleadings and submissions, the plaintiff instituted this suit in his capacity as one of the trustees of Full Gospel Churches of Kenya on behalf of the church. The church is alleged to have acquired the suit land from the defendant through one of its former members Joseph Kabugi Kuria for Kshs 75,000 and upon payment, members of the full Gospel Church, South Kinangop took possession and built a temporary church where they worship to date. In 2007 differences arose among the church members and some left to form their own church including Joseph Kabugi Kuria.
5. The application is opposed. In his replying affidavit the defendant sets out the history of the suit land. He avers that he inherited the said parcel from his late father. In 2005 he was approached by Joseph Kabugi Kuria, by then a member of the plaintiff’s church with a request to put up a building for worship purposes. In 2007, when Joseph Kabugi Kuria and his group were forcefully evicted from the land, some individuals laying claim over his land, forcefully entered therein and registered a caution against the title. He successfully removed the caution vide Nyahururu Misc application No. 2 of 2010 and filed a suit against them. Full Gospel Churches of Kenyawere enjoined as a party in Nakuru HCC No. 267 of 2010 and the suit is still pending for hearing and determination.
6. It is his view that the current application and suit are an abuse of the court process and should be struck out as Nakuru HCC No. 267 of 2010 which is still pending for determination involves the same subject matter and similar parties.
7. I have considered the written submissions by counsels of the respective parties dated 22nd November, 2013 by the applicant and 20th January, 2014 by the respondent and the authorities relied upon.
8. It is common ground that an earlier suit Nakuru HCC No. 267 of 2010 involving the same subject matter and similar parties is still awaiting determination. What is not clear to me is why counsel for the plaintiff chose to file another suit with same subject matter and similar parties. The counsel however cannot be accused of material non disclosure as he revealed from the very beginning about the other suit and even annexed copies of the pleadings.
9. That notwithstanding Section 6 of the Civil Procedure Act is clear on the consequences of such a suit. Section 6 provides;
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.
10. Under the circumstances I find l have no other alternative but to dismiss the application for injunction and stay this suit until Nakuru HCC No. 267 of 2010 is concluded.
11. Costs are awarded to the defendant.
Dated, signed and delivered on this 4th day of July 2014.
L N WAITHAKA
JUDGE.
PRESENT
Mr Waiganjo for the plaintiff/Applicant
Ms Serling holding brief for Wanjiru for the Defendant
Emmanuel Maelo : Court Clerk
L N WAITHAKA
JUDGE