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ELCDismissedELC Case No. E037 of 2021· [2022] KEELC 810 (KLR)

Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another [2022] KEELC 810 (KLR)

Environment and Land Court
11 March 2022
ECE.C. Cherono
1,653 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kerugoya on a preliminary objection dated 21st October 2021 by the 1st defendant, Martha Wanjiru Irungu, in a suit by the plaintiff, Cyrus Mucebiu Irungu, who claims to be the registered proprietor of parcel KIINE/RUKANGA/1689 and alleges that the 1st defendant, known to him through cohabitation and the mother of his two children, allowed the 2nd defendant, Jiangxi Transport Engineering Group Ltd, to excavate and mine murram on the land, amounting to trespass. The objection raised three grounds: that the issues are sub judice under Section 6 of the Civil Procedure Act given Kerugoya ELC No. E031 of 2021; that a petition concerning the plaintiff's mental capacity (HCF CC E023 of 2021, High Court Milimani) was pending; and that the suit was frivolous, vexatious and an abuse of process. Canvassed by written submissions, the court held that a sub judice objection requires comparison of parties, issues and prayers between suits, entailing ascertainment of facts and probing of evidence; the 1st defendant had not supplied the pleadings in the earlier suits. Relying on the Supreme Court's statement of the doctrine in the KNCHR case and following Margaret Wachu Karuri v John Waweru Ribiro, the court found the objection was not a pure point of law, did not meet the litmus test for a preliminary objection, and dismissed it entirely with costs to the plaintiff. The ruling was delivered on 11th March 2022 by Hon. E.C. Cherono, ELC Judge.

Key legal issues

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01

Whether sub judice under Section 6 of the Civil Procedure Act can be determined via a preliminary objection

Holding

No; it requires ascertainment of facts and probing of evidence and so is not a pure point of law. The objection was dismissed with costs to the plaintiff.

Reasoning

Applying the Supreme Court's statement of the sub judice doctrine, the court found the 1st defendant had not supplied copies of the pleadings in the two earlier suits for the court to compare parties, issues and prayers. Comparing those matters would require probing evidence. Relying on Margaret Wachu Karuri v John Waweru Ribiro, the court held that a preliminary objection cannot rest on disputed facts, agreed entirely with that reasoning as being in all fours with this case, and dismissed the objection with costs.

p. 2

Legal principles established

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  • A sub judice objection requiring comparison of issues, parties and prayers in two suits entails ascertaining facts and is therefore not a pure point of law and cannot be raised as a preliminary objection.
  • To invoke sub judice a party must establish multiple suits over the same subject matter, one instituted earlier, both pending before competent courts, and between the same parties or their representatives.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 21st October, 2021, by the 1st defendant/objector is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Section 6

Cases cited (9)

  • Kenya National Commission on Human Rights Vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)
    (2020) e KLR
  • Independent Boundaries Commission Vs Jane Cheperenger & 2 Others
    (2015) e KLR
  • John Patrick Muchira Vs Patrick Kahiaru Muturi
    (2002) e KLR
  • Stephen Mbugua Ikigu Vs Peter M. Mbugua & 2 Others
    (2014)
  • Quick Enterprise Ltd v Kenya Railways Corporation
    Kisumu HCCC No. 22 of 1999 (U/R)
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004 (U/R)
  • Oraro Vs Mbaja
    (2005) 1 KLR 141
  • Margaret Wachu Karuri Vs John Waweru Ribiro
    (2021) e KLR
  • Nyanza Garage Vs Attorney General
    Kampala High Court Civil Suit No. 450 of 1993
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (suit concerning title to and trespass on land); the ruling decides a preliminary objection raised under Section 6 of the Civil Procedure Act, Cap. 21

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another [2022] KEELC 810 (KLR)", Case Analysis (2022). ELC Case No. E037 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/810/eng@2022-03-11

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