Wandegeya Company Limited v Jennifer Muthoni Morigi, Jane Wanjiku Hiram Julia Wambui Gakungi (Sued as trustees and officials of Women Trust Housing Welfare Organization & 3 others [2020] KEELC 732 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an attempt to strike out a land case, ruling different parties mean a suit isn't blocked by a parallel case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice Machakos ELC No. 463 of 2017 contrary to Section 6 of the Civil Procedure Act
The suit is not sub judice because the Plaintiff is not a party to Machakos ELC No. 463 of 2017, is not litigating under the same title, and its claim is distinct and independent
Section 6 requires that the matter in issue be directly and substantially in issue in a previously instituted suit between the same parties or parties claiming under the same title. The Plaintiff here is not a party to the Machakos suit and no evidence shows it litigates under the same title. Its claim to ownership by title is distinct from the Defendants' claim there that the transfer to the 2nd Defendant is a nullity. Filing an independent suit and seeking consolidation was permissible.
Whether absence of a Board Resolution is a proper ground for a preliminary objection and strikes out the suit
It is not; the existence of a Board resolution is a factual issue determinable only at trial
A preliminary objection must rest on a pure point of law on the assumption that all facts pleaded by the other side are correct. Whether a Board resolution existed, whether one was required given the company's Memorandum and Articles of Association and List of Directors, requires evidence and cannot be resolved preliminarily. Counsel's authorities establish that a director may authorize filing without an express board resolution.
Whether the Notice of Preliminary Objection meets the legal test for a preliminary objection
The sub judice ground was a point of law and properly raised, but it failed on its merits; the Board resolution ground was not a true preliminary objection
The court applied Mukisa Biscuits, Equity Bank and Oraro v Mbajja. The sub judice plea under Section 6 is a matter of law. The Board resolution plea, however, bears factual aspects calling for proof and therefore is not a true preliminary objection. Having found no sub judice bar, the entire Notice was unmeritorious and was dismissed with costs.
Legal principles established
#- A preliminary objection must be a pure point of law not dependent on ascertainment of facts or exercise of judicial discretion
- A suit is not necessarily sub judice merely because it concerns the same subject matter as a pending suit; the parties must be the same or litigating under the same title
- The remedy where a party could not effectively join an existing suit is to file an independent suit and seek consolidation, which does not offend the sub judice rule
Court orders
#- 1.The Notice of Preliminary Objection by the 2nd Defendant dated 3rd March, 2020 is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Act (suit commenced by Plaint dated 13th May, 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandegeya Company Limited v Jennifer Muthoni Morigi, Jane Wanjiku Hiram Julia Wambui Gakungi (Sued as trustees and officials of Women Trust Housing Welfare Organization & 3 others [2020] KEELC 732 (KLR)", Case Analysis (2020). Not stated in the judgment (suit filed by Plaint dated 13th May, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/732/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.