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ELCAllowedOriginating Summons dated 30.8.2018 (Kericho ELC)· [2019] KEELC 3345 (KLR)

Hellen Chelangat Ruto v Rorogu Cheruiyot Ngeno & another [2019] KEELC 3345 (KLR)

Environment and Land Court
16 April 2019
JOJ.M ONYANGO
1,079 words in judgment
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The bottom line

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Kenya's land court stopped a duplicate land ownership case, confirming the first case filed about the same property must finish first.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 30.8.2018 seeking, among other orders, the deregistration of land parcel L.R No. KERICHO/KIPKELION/BARSIELE/220 registered in the Defendant's name and its transfer to her, contending she had occupied the land since 1984 with permission and had made major developments, and that the registered owner's 33-year absence from the land time-barred his claim. The 2nd Respondent filed a replying affidavit asserting he was merely a caretaker and that the suit was fatally defective, and the Respondents raised a Notice of Preliminary Objection on three grounds: sub-judice in view of Kericho ELC Case No. 94 of 2017; that the suit was frivolous, defective and an abuse of process because the alleged occupation was consensual and not exclusive; and that it disclosed no reasonable cause of action. Relying on Mukisa Biscuits v West End Distributors, the court held that only the sub-judice ground qualified as a preliminary objection since the other grounds required ascertainment of facts and exercise of judicial discretion. Applying section 6 of the Civil Procedure Act and Kiama Wangai v John N. Mugambi, the court found both suits concern ownership, use and occupation of the same parcel, with the same Plaintiff and related Defendants, and that the decision in the earlier suit would bear on this one. The court stayed this suit pending the hearing and determination of Kericho ELC Case No. 94 of 2017, upholding the Preliminary Objection. Judgment delivered at Kericho on 16 April 2019 by J.M Onyango, J.

Key legal issues

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01

Whether the suit is sub-judice

Holding

Yes; the suit is substantially similar to and was filed after Kericho ELC Case No. 94 of 2017, so it was stayed pending that case.

Reasoning

Applying section 6 of the Civil Procedure Act, the court found that both suits relate to ownership, use and occupation of the same parcel, KERICHO/KIPKELION/BARSIELE/220; the plaintiff is the same in both, and the defendants in ELC No. 94 of 2017 derive their claim from the 1st Defendant here. The decision in the earlier suit would bear on this one, so the mandatory stay under section 6 applied.

p. 2
02

Whether the remaining grounds (frivolity, abuse of process, failure to disclose cause of action) qualify as preliminary objections

Holding

No; only the sub-judice ground qualified, as the others require ascertaining facts and exercising judicial discretion.

Reasoning

Guided by Mukisa Biscuits v West End Distributors, the court held a preliminary objection must be a pure point of law decided on assumed facts. Grounds (ii) and (iii) would require examining the facts and exercising discretion whether to strike out, so only the sub-judice ground was dealt with as a preliminary point.

p. 2

Legal principles established

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  • Only grounds of law that require no ascertainment of facts qualify as preliminary objections
  • Where suits fall within section 6 of the Civil Procedure Act, the court has no discretion but to stay the subsequent suit

Court orders

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  1. 1.The instant suit is stayed pending the hearing and determination of Kericho ELC Case No. 94 of 2017
  2. 2.The Preliminary Objection succeeds

Authorities

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Legislation

  • Civil Procedure Actsection 6

Cases cited (2)

  • Mukisa Biscuits V West End Distributors Ltd
    (1969) E.A 696
  • Kiama Wangai V John N. Mugambi & Another
    (2012) eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act (res sub-judice); Environment and Land Court Act jurisdiction

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, "Hellen Chelangat Ruto v Rorogu Cheruiyot Ngeno & another [2019] KEELC 3345 (KLR)", Case Analysis (2019). Originating Summons dated 30.8.2018 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3345/eng@2019-04-16

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