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ELCDismissedOriginating Summons dated 24th December 2018 (Thika ELC)· [2021] KEELC 2793 (KLR)

Margaret Wachu Karuri v John Waweru Ribiro [2021] KEELC 2793 (KLR)

Environment and Land Court
17 June 2021
LGL. Gacheru
1,637 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a sub judice objection can't be used to strike out a land suit when deciding it requires examining facts, so the case proceeds.

What this practically means

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Executive summary

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The Defendant/Objector filed a Notice of Preliminary Objection dated 30th August 2019 seeking striking out of the Plaintiff's Originating Summons dated 24th December 2018, which sought vesting orders by way of adverse possession over land parcel Limuru/Bibirioni/4131. The objection rested on the sub judice rule under Section 6 of the Civil Procedure Act, contending that Nairobi ELC Appeal No. 211 of 2016 (John Waweru Ribiro v Margaret Wachu Karuri), arising from the dismissed Limuru SPMCC No. 179 of 2016, raised the same ownership issue, and that the Plaintiff had deliberately failed to disclose that appeal, rendering the suit an abuse of process. The Defendant, relying on Thiba Min. Hydro Ltd v Josphat Karu Ndwiga, urged the court to decline jurisdiction. The Plaintiff responded that the objection raised matters of fact rather than pure points of law, that Section 6 provides for stay of suit and not striking out, and that adverse possession claims differ from the eviction orders litigated below. Justice L. Gacheru applied the Mukisa Biscuits definition of a preliminary objection and Oraro v Mbaja, holding that a preliminary objection must be a pure point of law on pleaded facts and cannot depend on facts to be ascertained. Determining whether the issues and prayers in this suit substantially match those in the appeal would require probing of evidence, as in Henry Wanyama Khaemba v Standard Chartered Bank. The objection was therefore found not merited and dismissed entirely with costs to the Plaintiff/Respondent. The ruling was delivered virtually on 17th June 2021 pursuant to COVID-19 directives.

Key legal issues

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01

Whether the sub judice/abuse of process objection is a proper preliminary objection

Holding

It is not; it depends on disputed or ascertainable facts

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, the court held that a preliminary objection must be a pure point of law founded on the pleadings. Determining whether the issues and prayers in this suit are the same as those in ELC Appeal No. 211 of 2016 and SPMCC No. 179 of 2016 requires probing evidence and ascertaining facts, which is outside the limited scope of a preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law on pleaded or clearly implied facts; it cannot be raised where facts must be ascertained or judicial discretion exercised
  • A sub judice objection requiring comparison of issues and reliefs in other suits involves probing of evidence and is not a true preliminary objection

Court orders

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  1. 1.The Notice of Preliminary Objection dated 30th August 2019 by the Defendant/Objector is dismissed entirely
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Thiba Min. Hydro Ltd v Josphat Karu Ndwiga
    (2013) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) 1 KLR 141
  • Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another
    (2014) EKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly cited in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Margaret Wachu Karuri v John Waweru Ribiro [2021] KEELC 2793 (KLR)", Case Analysis (2021). Originating Summons dated 24th December 2018 (Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2793/eng@2021-06-17

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