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ELCDismissedELC suit, plaint dated 15th April 2021· [2022] KEELC 628 (KLR)

Registered Trustees of Teleposta Pension Scheme v Bernard Kariuki Wataari & 11 others [2022] KEELC 628 (KLR)

Environment and Land Court
17 March 2022
LKL. Komingoi
479 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to strike out a land suit, ruling a pending appeal doesn't make a case sub judice without a stay of execution.

What this practically means

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Executive summary

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By a plaint dated 15th April 2021, the Plaintiff sought judgment against the Defendants jointly and severally for vacant possession of specified houses on the suit premises within sixty days, and in default, eviction. The Defendants responded with a notice of preliminary objection dated 9th June 2021, arguing that the issues in the plaint were directly and substantially in issue in pending Civil Appeal No. 390 of 2019 before the Court of Appeal, which was yet to determine the Defendants' rights to the premises they occupy and an application for a temporary injunction pending appeal, and that entertaining the suit would amount to multiplicity of suits and an abuse of process. They prayed that the plaint be struck out and the suit dismissed with costs. The parties consented on 26th July 2021 to canvass the objection by written submissions. The Defendants maintained that the pendency of the appeal rendered the suit sub judice; the Plaintiff countered that the appeal had never been prosecuted and that no orders of stay of execution had been issued. The court found that Civil Appeal No. 390 of 2019 arose out of ELC 157 of 2016 consolidated with ELC 381 of 2014, in which the parties had already been heard and judgment delivered, and that there were no orders of stay of execution. There being no pending proceedings before the court between the parties, the suit was not sub judice. The preliminary objection was found to lack merit and was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the pendency of Civil Appeal No. 390 of 2019 renders the present suit res sub judice

Holding

The preliminary objection fails; the suit is not sub judice because there are no pending proceedings before this court between the parties and no stay of execution is in place

Reasoning

The court noted that Civil Appeal No. 390 of 2019 arises out of ELC 157 of 2016 consolidated with ELC 381 of 2014, in which the parties had already been heard and judgment delivered. Since those proceedings were concluded in this court and no orders of stay of execution were issued, there were no proceedings pending before this court touching on the same subject matter, so the suit was not sub judice and entertaining it would not constitute an abuse of process.

p. 2

Legal principles established

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  • A suit is not res sub judice merely because an appeal between the same parties is pending in the Court of Appeal where the suit court has already determined the prior proceedings and no stay of execution has been issued

Court orders

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  1. 1.The preliminary objection dated 9th June 2021 is dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff/Respondent
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (the suit, ELC, was filed by plaint; the ruling decides a preliminary objection)

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, "Registered Trustees of Teleposta Pension Scheme v Bernard Kariuki Wataari & 11 others [2022] KEELC 628 (KLR)", Case Analysis (2022). ELC suit, plaint dated 15th April 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/628/eng@2022-03-17

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