Samuel Kathurima Itewa v Family Bank Limited & another [2021] KEELC 3340 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to hear a duplicate injunction application because the same request was still pending before the lower court.
What this practically means
#Executive summary
#Key legal issues
#Whether the application dated 18.11.2020 was sub judice under Section 6 of the Civil Procedure Act
The application was sub judice to the applicant's application dated 12.9.2019 pending before the trial court; the preliminary objection was upheld and the application dismissed
The court compared the two applications and found them materially identical in the orders sought, the provisions of law relied upon and the parties, differing only in that one sought orders pending suit and the other pending appeal. Since the trial court had directed the earlier application be heard on its merits and no stay of proceedings existed, the appellate court could not determine the same issues in the first instance.
Whether a court of appeal may determine the merits of an application pending before the trial court
No; doing so would determine the matter in the first instance contrary to the judicial hierarchy, following Florence Nyaboke Machani v Mogere Amosi Ombui
Relying on the Supreme Court's decision in Machani, the court reasoned that if the appeal failed, the trial court would still have to determine the application dated 12.9.2019, and it could not do so meaningfully if the High Court had already decided the merits of the identical application. No orders of stay of proceedings had been sought or granted, leaving the trial court free to proceed.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed pleaded facts and cannot be raised where facts must be ascertained or judicial discretion exercised (as stated in Mukhisa Biscuit)
- Section 6 of the Civil Procedure Act bars a court from proceeding with a suit or proceeding where the matter directly and substantially in issue is already in issue in a previously instituted proceeding between the same parties
- An appellate court should not determine in the first instance a matter pending before the trial court, as that would offend the design of the judicial hierarchy
Court orders
#- 1.The preliminary objection dated 22.1.2021 is allowed
- 2.The application dated 18.11.2020 is dismissed with costs to the respondent
- 3.The earlier orders given on 9.12.2020 are discharged
- On appeal from
- Magistrates' Court (Meru)
- Meru CM ELC No. 102 of 2019
- Jurisdiction invoked
- Appellate/supervisory jurisdiction over the magistrates' court; application brought under Sections 1A, 1B & 3A of the Civil Procedure Act and Order 40 rules 1 & 4 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kathurima Itewa v Family Bank Limited & another [2021] KEELC 3340 (KLR)", Case Analysis (2021). Not stated in judgment (appeal from Meru CM ELC No. 102 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3340/eng@2021-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.