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ELCStruck OutELC Case No. 313 of 2017· [2019] KEELC 3391 (KLR)

Ismael Tete Keya v Joseph Masinde Juma & 3 others [2019] KEELC 3391 (KLR)

Environment and Land Court
14 May 2019
NMN.A. Matheka
879 words in judgment
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The bottom line

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The Environment and Land Court struck out a land suit because an earlier case over the same land was already pending, and ordered the plaintiff to pay the defendants' costs.

What this practically means

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Executive summary

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The plaintiff sued the four defendants, alleging they trespassed on land parcel NORTH WANGA/KHALABA/1145, which had belonged to the plaintiff's late father who died on 1 July 2016. The defendants had built four semi-permanent houses on the land and buried the remains of their father, Ibrahim Juma Mukamo, there without a court order. The plaintiff sought an order that the defendants vacate the land until the original land case, ELC Case No. 228 of 2013, pending before the High Court at Kakamega, was heard and determined, plus costs. The defendants maintained the land belonged to their deceased father, that they had every right to bury and build on it, and asked that the suit be dismissed or struck out. In submissions, the defendants raised the sub judice point, arguing the suit duplicated the pending ELC Case No. 228 of 2013. The court, noting the point should properly have been raised as a preliminary objection as defined in Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd, nonetheless considered it. Applying sections 6 and 7 of the Civil Procedure Act, and noting the plaintiff's own admission in paragraph 7 of the plaint that the similar suit was pending, the court found the suit sub judice, a total waste of the court's time, and unmerited. The suit was struck out with costs to the defendants.

Key legal issues

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01

Whether a sub judice point raised in submissions rather than by preliminary objection can still be determined

Holding

Yes - the court may consider a point of law even where it was not raised as a preliminary objection

Reasoning

The court noted the defendants raised sub judice only in submissions after a full hearing, rather than as a preliminary objection, which would have saved the court's time. Relying on Mukisa Biscuit, the court observed the res judicata/sub judice point is one properly raised as a preliminary objection, but held that it would nonetheless consider the point of law on its merits, since the existence of the pending suit was not in dispute.

p. 2
02

Whether the suit is sub judice given pending ELC Case No. 228 of 2013

Holding

Yes - the suit was struck out as sub judice

Reasoning

The plaintiff admitted in paragraph 7 of the plaint that a similar suit, ELC Case No. 228 of 2013, was still pending. Both litigants testified to the existence of that case and the issue was not in dispute. Applying sections 6 and 7 of the Civil Procedure Act, the court found the matter directly and substantially in issue in the previously instituted suit, rendering the present suit an unnecessary duplication.

p. 2

Legal principles established

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  • A suit whose subject matter is directly and substantially in issue in a previously instituted pending suit is sub judice and should not be tried

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs of the suit to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7

Cases cited (1)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied by the court's constitution); no express provision invoked

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, "Ismael Tete Keya v Joseph Masinde Juma & 3 others [2019] KEELC 3391 (KLR)", Case Analysis (2019). ELC Case No. 313 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3391/eng@2019-05-14

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