Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherELC suit, Nakuru, injunctive application dated 14th December 2017· [2018] KEELC 281 (KLR)

E N M N v R M S & 2 others [2018] KEELC 281 (KLR)

Environment and Land Court
11 December 2018
1,389 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Nakuru court sent a disputed land sale case to Narok where a similar suit was already pending, and refused to stop the auction for now.

What this practically means

#

Executive summary

#
By Notice of Motion dated 14th December 2017, the plaintiff, who deponed that she has been married under Maasai Customary Law since 10th March 1995 to the registered proprietor of the suit property, sought an interlocutory injunction restraining the defendants from offering for sale, advertising, selling or transferring the property. She asserted that a 2014 charge securing a loan from the 2nd defendant was registered without her knowledge or spousal consent despite her matrimonial home being on the land, and that the property was advertised for auction on 19th December 2017. The 2nd defendant filed grounds of opposition, a replying affidavit sworn by its Credit Manager Joseph Muhia, and a Notice of Preliminary Objection contending that the court lacked jurisdiction because a substantially similar suit (Narok ELC No. 187 of 2017, formerly Nakuru ELC No. 382 of 2016) between the same parties over the same property was pending before ELC Narok, and that the application was res judicata of orders made in that case. The 1st and 3rd defendants did not participate. The court set out the settled test for preliminary objections, held the objection invalid because the 2nd defendant had itself introduced the evidence of the Narok case, but considered the same issues as a general response. Comparing the two plaints, the court found the issues directly and substantially in issue in the earlier pending Narok suit and declined to determine the application. The court transferred the matter to ELC Narok, leaving the Narok court to consider res judicata, the application and the suit generally, with costs in the cause.

Key legal issues

#
01

Validity of the preliminary objection

Holding

The preliminary objection failed because it depended on facts (existence and contents of the Narok case) introduced into evidence by the 2nd defendant itself

Reasoning

The court applied the settled test that a preliminary objection must be a pure point of law argued on assumed pleaded facts. The 2nd defendant introduced evidence of the Narok case through a replying affidavit and then relied on that evidence to support the objection. Since facts had to be ascertained, the objection was not a valid one and was dismissed, though the same issues were considered as a general response.

p. 2
02

Stay of suit under Section 6 of the Civil Procedure Act

Holding

The issues in this suit are directly and substantially in issue in the earlier pending Narok case between the same parties over the same property; the suit was therefore transferred rather than determined

Reasoning

Comparing the plaints, both suits involve the same suit property and substantially the same parties: the plaintiff here claims an overriding interest and invalidity of the charge for want of spousal consent and an injunction against sale; the Narok plaint by her husband sought to restrain the same auction sale and an injunction. The previously instituted Narok suit was pending; the court exercised the Section 6 result of staying this suit via transfer.

p. 2

Legal principles established

#
  • A preliminary objection must raise a pure point of law, be argued on the assumption that all pleaded facts are correct, and cannot be raised if facts must be ascertained or judicial discretion exercised
  • A party cannot prop a preliminary objection on evidence it has itself introduced into the record
  • Where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, the court will stay the suit under Section 6 of the Civil Procedure Act

Court orders

#
  1. 1.This matter is hereby transferred to Environment and Land Court at Narok.
  2. 2.Costs in the cause.

Authorities

#

Legislation

  • Civil Procedure Act, CAP 21 Laws of KenyaSection 6
  • Civil Procedure Act, CAP 21 Laws of KenyaSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction under the ELC Act; Civil Procedure Act (Sections 6 and 7) invoked on stay/res judicata

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "E N M N v R M S & 2 others [2018] KEELC 281 (KLR)", Case Analysis (2018). ELC suit, Nakuru, injunctive application dated 14th December 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/281/eng@2018-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.