[2018] KEELC 3160 (KLR)
The court found that the cause of action in the present suit and the earlier suit are different: one concerns trespass and eviction, while the other concerns adverse possession. Therefore, the doctrine of sub judice does not apply, and the suit need not be stayed. On the issue of the originating summons, the court...
Source-derived case information.
- Citation
- [2018] KEELC 3160 (KLR)
- Parties
- Plaintiff: Yakobo Kilwake Wanyama; Plaintiff: Enock Kwanusu; Plaintiff: Gladys Auma Ndege; Plaintiff: Everline Indekwa Josephat; Plaintiff: Norah Wanyama; Defendant: Charles Barasa Manaba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 49 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Sub Judice, Originating Summons Defects, Adverse Possession, Trespass, Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yakobo Kilwake Wanyama
Plaintiff
Enock Kwanusu
Plaintiff
Gladys Auma Ndege
Plaintiff
Everline Indekwa Josephat
Plaintiff
Norah Wanyama
Plaintiff
Charles Barasa Manaba
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is sub judice under Section 6 of the Civil Procedure Act and should be stayed.
- 2 Whether the originating summons is fatally defective for lack of supporting affidavit and certified copy of title as required by Order 37 rule 7(2) of the Civil Procedure Rules 2010.
Ratio Decidendi
The court found that the cause of action in the present suit and the earlier suit are different: one concerns trespass and eviction, while the other concerns adverse possession. Therefore, the doctrine of sub judice does not apply, and the suit need not be stayed. On the issue of the originating summons, the court held that the failure to annex a certified copy of the title and to support the summons with an affidavit is not fatal at this stage, as the suit has not been heard and directions have not been taken. The preliminary objection was found to lack merit and was dismissed with costs to the plaintiffs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC 49 OF 2013
YAKOBO KILWAKE WANYAMA
ENOCK KWANUSU
GLADYS AUMA NDEGE
EVERLINE INDEKWA JOSEPHAT
NORAH WANYAMA................................................PLAINTIFFS
VERSUS
CHARLES BARASA MANABA...........................DEFENDANT
RULING
The defendant objects to the suit on the following points of law:-
1. The defendant’s file ELC NO. 187 OF 2014 (i.e. Civil suit No. 219 of 2012) on 29/8/2012 against the 5th plaintiff under whom the 1st, 2nd, 3rd and 4th plaintiffs are claiming. While the suit was pending the plaintiffs have come up with the present suit. The suit is sub judice under Section 6 of the Civil Procedure Act which prohibits the court from conducting the suit. The court may stay the suit until the first suit is determined.
2. The originating summons by which the suit was brought is fatally defective in that it was not supported by affidavit and a certified copy of the title of the land was not annexed as required by Order 37 r7 (2) of the Civil Procedure Rules 2010. This is an incurable defect.
The respondents submitted that the suit is not defective and relied on the case of Richard Arap Chemunyani & Others Vs Mpasi Ole Ngogoni HCCC No. 160 of 2005 and the PO is a technical objection. As quoted in the ruling the cases of Kweyu Vs Moto (1990) KLR 709 and Kasuve Vs Maani Investments Ltd (2004) KLR 184 can be distinguished for in these cases the suit was heard and the plaintiff’s failed to produce certified extracts of the titles. In the present case the suit has not been heard and directions have not been taken.
On the issue of sub judice, I have perused the pleadings of both cases and find that the cause of actions are different. One is about trespass and eviction and the other is adverse possession. The parties may as well apply to consolidate the matters. For these reasons I find the preliminary objection has no merit and I dismiss the same with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 31STDAY OF MAY 2018.
N.A. MATHEKA
JUDGE