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ELCDismissedNot stated in the judgment (suit filed by Plaint dated 13th May, 2019)· [2020] KEELC 732 (KLR)

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)

Environment and Land Court
6 November 2020
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Environment and Land Court ruling at Machakos, delivered by O. A. Angote J on 6th November, 2020, determined a Notice of Preliminary Objection dated 3rd March, 2020 filed by the 2nd Defendant seeking to strike out the Plaintiff's suit. The objection had four limbs: that the suit was sub judice Machakos ELC No. 463 of 2017, a pending suit over the same land (L.R. No. 20523 Mavoko (I.R 206349)) contrary to Section 6 of the Civil Procedure Act; that the reliefs sought ought to be determined in that suit; that the Plaintiff lacked a Board Resolution authorizing the suit; and that the suit was fatally defective for want of locus. The 1st Defendant supported the objection, arguing the Plaintiff should have sought joinder under Order 1 Rule 10(2) rather than filing a separate suit. The Plaintiff, relying on Harid Dhanji Varsani, John Mwangi Wamai, Fubeco China Fushun and Wanyiri Kihoro, contended the parties in the two suits differed, that consolidation - not striking out - was the remedy for sub judice, and that a director need not obtain an express board resolution to institute proceedings. Applying Mukisa Biscuits, Equity Bank v Yongo and Oraro v Mbajja, the court held the sub judice objection failed because the Plaintiff was not a party to the Machakos suit and was not litigating under the same title; filing an independent suit and seeking consolidation did not offend Section 6. The Board resolution ground was a factual issue unfit for determination on a preliminary objection. The Notice of Preliminary Objection was dismissed with costs; the main suit proceeds to hearing.

Key legal issues

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01

Whether the suit is sub judice Machakos ELC No. 463 of 2017 contrary to Section 6 of the Civil Procedure Act

Holding

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

Reasoning

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.

p. 4
02

Whether absence of a Board Resolution is a proper ground for a preliminary objection and strikes out the suit

Holding

It is not; the existence of a Board resolution is a factual issue determinable only at trial

Reasoning

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.

p. 4
03

Whether the Notice of Preliminary Objection meets the legal test for a preliminary objection

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection by the 2nd Defendant dated 3rd March, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 11 Rule 3(1)(h)

Cases cited (8)

  • Equity Bank Limited vs. Bryan Yongo & Another
    [2014] eKLR
  • Mukisa Biscuits Manufacturing Ltd vs. West End Distributors
    (1969) EA 696
  • Harid Dhanji Varsani vs. Hamisi Murinzi Kokoi & 3 others
    [2015] eKLR
  • John Mwangi Wamai vs. Teresa Gathiri Mwema
    [2015] eKLR
  • Thiba Min Hydro Co. Ltd vs. Joseph Karu Ndwigwa
  • Fubeco China Fushun vs. Naiposha Company Limited & 11 others
    [2014] eKLR
  • Wanyiri Kihoro vs. Konahauthi Ltd
    [2017] eKLR
  • Oraro vs. Mbajja
    [2005] eKLR
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

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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, "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.