Teresia Muteo Ngumbi (suing as an Administrator of the late Isaack Mumo Mulei) & 4 others v Diani Tourism Hand Craft & another [2021] KEELC 2958 (KLR)
The bottom line
#A Kenyan court ruled that duplicate land cases should be paused, not thrown out, and that limitation arguments need evidence so they cannot succeed as preliminary objections.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice under Section 6 of the Civil Procedure Act
The suit is sub judice because a previously instituted suit, Mombasa ELC No. 71 of 2014, between the same or some of the same parties touches on the same subject matter; both parties' pleadings admit this.
The court applied Section 6 of the Civil Procedure Act. Paragraph 11 of the plaint admitted ELC No. 71 of 2014 touching on the suit property, and the defence pleaded contravention of Section 6. The court found a previously instituted suit between the same parties (or some of them) on the same subject matter was admitted, so the plea of sub judice was proved and sustained.
Whether sub judice justifies striking out the suit
No; the statutory remedy is stay of suit, as reflected in the marginal notes to Section 6.
Although the 1st defendant sought striking out, the court held that even a proved plea of sub judice does not warrant striking out. The viable order is a stay pending determination of the earlier suit, consistent with the marginal notes to Section 6 which describe the section as 'stay of suit'.
Whether the claims of the 1st, 2nd and 3rd plaintiffs are time barred
The limitation objection cannot be sustained because when the cause of action arose is not agreed and is a fact to be ascertained.
While limitation can be raised by preliminary objection, the court must look at pleadings to fix the cause of action. The plaint did not state when the plaintiffs' search revealing the transfer was conducted, and the allegation of a 2003 allocation came from pleadings in ELC No. 71 of 2014, not from the defence here. Reliance on evidence takes the objection outside a pure point of law.
The test for a valid preliminary objection
A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or discretion exercised.
The court adopted the classic statement in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, applying it to both grounds. The sub judice ground succeeded on admitted pleadings; the limitation ground failed because it required factual ascertainment of when the cause of action accrued.
Legal principles established
#- A successful plea of sub judice warrants a stay of the subsequent suit, not its striking out
- A preliminary objection requiring ascertainment of facts or reliance on evidence ceases to be a pure point of law and must fail
Court orders
#- 1.The preliminary objection on the ground that the suit is sub judice is sustained
- 2.The suit is stayed pending determination of Mombasa ELC No. 71 of 2014, Joseph Ndunda Mukula & 2 Others v Josephat Mbithi
- 3.The preliminary objection on the ground that the suit is time barred is dismissed
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; preliminary objection under Section 6 of the Civil Procedure Act, the Limitation of Actions Act and the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teresia Muteo Ngumbi (suing as an Administrator of the late Isaack Mumo Mulei) & 4 others v Diani Tourism Hand Craft & another [2021] KEELC 2958 (KLR)", Case Analysis (2021). Not stated in the excerpt (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2958/eng@2021-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.