E N M N v R M S & 2 others [2018] KEELC 281 (KLR)
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
#Key legal issues
#Validity of the preliminary objection
The preliminary objection failed because it depended on facts (existence and contents of the Narok case) introduced into evidence by the 2nd defendant itself
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.
Stay of suit under Section 6 of the Civil Procedure Act
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
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.
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.This matter is hereby transferred to Environment and Land Court at Narok.
- 2.Costs in the cause.
- 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.