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ELCDismissedNot stated in the judgment· [2019] KEELC 1605 (KLR)

Hamadi Mohamed Haji & another v Omar Pamba & 3 others [2019] KEELC 1605 (KLR)

Environment and Land Court
30 September 2019
1,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear land ownership and trespass disputes even while a related succession case is pending elsewhere.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determines a preliminary objection dated 18th February 2019 by the 2nd Defendant, who sought dismissal, withdrawal or stay of the Plaintiffs' suit on the grounds that it was sub judice (Succession Cause No. 11 of 2016 at Kwale pending) and filed in the wrong court, contrary to Sections 6, 11, 12(d) and 15 of the Civil Procedure Act. The Plaintiffs' plaint dated 17th December 2018 sought a declaration of ownership of parcel KWALE/NG'OMBENI/1664, a permanent injunction against the Defendants, general damages for trespass, and costs; the Plaintiffs alleged trespass and encroachment by the 1st Defendant and interference with their quiet enjoyment by the 1st to 4th Defendants. The court applied the classic definition of a preliminary objection from Mukisa Biscuits Manufacturing Ltd v West End Distributors Ltd and Garden Square Ltd v Kogo: a pure point of law that disposes of the suit without ascertaining facts. It held that the Kadhi's Court's jurisdiction under Section 5 of the Kadhi's Court Act is limited to Muslim law questions of personal status, marriage, divorce and inheritance, so the pending succession cause could not found a sub judice objection; ownership and trespass fall squarely within the ELC's jurisdiction. On place of suit, the court noted the property's value was not disclosed in the pleadings and, being a fact to be ascertained, could not ground a preliminary objection. The objection was dismissed with costs to the Plaintiffs on 30th September 2019.

Key legal issues

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01

Whether the suit is sub judice given the pending Succession Cause No. 11 of 2016 at Kwale

Holding

The objection fails: the Kadhi's Court has no jurisdiction over ownership and trespass, so the pending succession cause does not engage Section 6; the dispute is squarely within this court's jurisdiction

Reasoning

Section 6 of the Civil Procedure Act bars a court from proceeding where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties in a court with jurisdiction to grant the relief claimed. The Kadhi's Court's jurisdiction under Section 5 of the Kadhi's Court Act covers only Muslim personal status, marriage, divorce and inheritance. The present dispute concerns ownership and trespass on land, which falls within the ELC's and magistrate's courts' jurisdiction. The pending succession cause therefore cannot support the sub judice objection.

p. 2
02

Whether the suit was filed in the wrong court on account of the value of the suit property

Holding

The objection cannot be sustained because the value of the suit property is not disclosed in the pleadings and must be ascertained

Reasoning

The 2nd Defendant asserted through submissions only that the property value was below Kshs. 20 million, placing the suit within the Chief Magistrate's Court at Kwale. Since a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and the value of the property is neither agreed nor pleaded but is a fact to be ascertained, the objection fails.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where any fact has to be ascertained or where the exercise of judicial discretion is sought
  • The Kadhi's Court's jurisdiction is limited to Muslim law questions of personal status, marriage, divorce or inheritance; disputes over land ownership and trespass fall outside it and within the ELC/ magistrate's courts
  • Section 6 of the Civil Procedure Act bars trial of a suit where the matter directly and substantially in issue is pending in a previously instituted suit between the same parties

Court orders

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  1. 1.The preliminary objection dated 18th February 2019 is dismissed with costs to the plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 11, 12(d) and 15
  • Kadhi's Court Act Cap II of the Laws of KenyaSection 5

Cases cited (2)

  • Garden Square Ltd –v- Kogo & Another
    (2003) eKLR
  • Mukisa Biscuits Manufacturing Ltd –v- West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - dispute over ownership and trespass on land; jurisdiction under Section 5 of the Kadhi's Court Act considered

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hamadi Mohamed Haji & another v Omar Pamba & 3 others [2019] KEELC 1605 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1605/eng@2019-09-30

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