Henry Kipkosgei Serem v Erdemann Property Ltd & another [2019] KEELC 2009 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that similar disputes by different resident groups are not duplicate cases, so both suits can continue.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice Nairobi HCCC No. 55 of 2016 (Machakos ELC No. 35 of 2019) under Section 6 of the Civil Procedure Act
The preliminary objection on sub judice fails because the parties are not the same and the Plaintiff is not litigating under the same title, notwithstanding that the issues in the two suits are the same.
The court compared the parties: the Nairobi/Machakos suit was filed by the residents of Greatwall Apartments Phase III through John Kieti Makila, while this suit was filed by the Chairman of the Greatwall Apartments Phase I Residents Association. The Plaintiff here is neither a signatory to the letter of authority in the other suit nor a Phase III resident. Different parties and different titles defeat sub judice under Section 6, even where the issues overlap.
Whether the suit breaches Sections 119 and 121 of the Water Act No. 43 of 2016
The objection under the Water Act failed because the Defendants did not submit on it.
Counsel for the 1st Defendant asserted in the notice of preliminary objection that the suit breached the procedure in Sections 119 and 121 of the Water Act, but in written submissions no argument was advanced on that ground. An unargued ground of objection cannot succeed.
Case management where two suits raise the same issues but are not sub judice each other
The court recommended that one suit be used as a test suit or that the two suits be consolidated for the convenience of the parties.
Although the sub judice objection failed, the court recognised the substantial overlap in issues concerning the Waste Water Treatment Plant on L.R. No. 12715/6322. As a practical measure it suggested a test suit or consolidation, but this was not a binding direction in the final order.
Legal principles established
#- A suit is not sub judice under Section 6 of the Civil Procedure Act where the parties and the title under which they litigate differ, even if the subject matter or issues are similar
Court orders
#- 1.Dismissal of the Plaintiff's Notice of Preliminary Objection dated 11th November, 2018 with no order as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution establishing the Environment and Land Court (as the court seized of a land dispute); no specific provision cited in the Ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Kipkosgei Serem v Erdemann Property Ltd & another [2019] KEELC 2009 (KLR)", Case Analysis (2019). ELC Case No. 308 of 2018 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2009/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.