1.The central property in the present appeal is land reference number Kanyada/Kanyango/Kanya/1600 measuring approximately one decimal one four hectares (1.14 Ha) in area (The suit property herein).
2.The appeal was provoked by the trial court’s ruling delivered on September 17, 2021 where the learned trial magistrate reasoned;
3.The appellant was aggrieved by the trial court’s decision. Therefore, he mounted the appeal by way of a memorandum of appeal dated January 5, 2022 based on twinned ground;
4.On that account, he is seeking the orders infra;
5.On September 26, 2022, this court ordered and directed, inter alia;
6.By the submissions dated October 27, 2022 and filed on even date, learned counsel for the appellant submitted that this appeal has merit. That the appellant has acquired the suit property by adverse possession and relied on the case of Stephen Mwangi Gatunge-vs-Edwin Onesmus Wanjau (2020) eKLR.
7.The respondent failed to file submissions herein. He was duly served on November 28, 2022 via email through his counsel, Peter M Warindu and Company Advocates as discerned in an affidavit of service sworn on November 28, 2022 by Odera Aluoch, the appellant’s counsel.
8.It must be noted that by a plaint (fast track) dated October 24, 2019 and filed in court on October 25, 2019 as Homa Bay Chief Magistrate’s Court Civil suit No 55 of 2019 (the first suit herein), the respondent is seeking inter alia, a permanent injunction against the appellant in respect of the suit property.
9.In his statement of defence dated February 1, 2022, the defendant who is the appellant herein, denied the first suit. He prayed that the same be dismissed with costs.
10.Similarly, the appellant sued the respondent by way of an originating summons dated July 2, 2020 and filed on even date at Homa Bay Chief Magistrate’s Court Civil Suit No 55 of 2019. (The subsequent suit herein) claiming to have acquired title of the suit property by adverse possession.
11.The defendant who is the respondent herein, opposed the originating summons by way of his replying affidavit sworn on March 24, 2021. He deposed in part that he filed the subsequent suit herein seeking a permanent injunction against the appellant in respect of the suit property. Thus, he prayed that the originating summons suit be stayed or dismissed with costs
12.In reaching the impugned decision, the learned trial magistrate noted that the respondent’s submissions were hinged upon the first suit which is still pending. Further, the court observed that the first and subsequent suits were similar and that;
13.I have carefully considered the entire appeal as captured in the record of appeal herein as well as the appellant’s submissions. So, is there merit in this appeal?
15.The doctrine of sub judice as stated in the impugned decision is housed in section 6 (supra) which reads;
17.The learned trial magistrate bore in mind that the two suits involved the same parties and the same suit property. That therefore, they could not be heard simultaneously before the trial court.
19.Pursuant to this court’s orders of March 13, 2023, the original record of the first suit was availed and I perusal of the same alongside the entire record herein. It must be noted that the first suit and subsequent suits lodged in the trial court on different dates, involve the same parties. Basically, their dispute is over ownership of the suit property.
21.Besides, sections 5 and 11 of the Civil Procedure Act chapter 21 laws of Kenya provide for courts to try all civil suits unless barred and court in which suit is to be instituted respectively. This court has the mandate to remand a case under section 78 (1) (b) of the same Act.
23.Clearly, both the first and subsequent suits are yet to be determined on merits. The trial court ordered the parties to fast track the hearing of the first suit.
25.To that end, it is my considered view that the learned trial magistrate considered the record presented before her and the impugned judgment is in consonant with the law save for the trial court’s failure to render orders to meet the ends of justice hence the observation made in paragraphs 21, 22, 23 and 24 hereinabove is quite applicable in the obtaining circumstances. To that extent, I partially affirm the judgment.
26.Accordingly, this appeal is hereby partially dismissed.
27.Additionally, in the spirit of sections 1A, 1B, 3, 3A, 11 and 78 (1) (b) of the Civil Procedure Act chapter 21 laws of Kenya article 159 (2) (b) (supra) and section 3 of the ELC Act, 2015 (2011), it is hereby ordered that.
28.It is so ordered.