Andrew Kipkoskei Too v Francis Arap Terer & 5 others [2022] KEELC 1165 (KLR)
The bottom line
#The Environment and Land Court in Kericho dismissed a landowner's claim as an abuse of process because the same dispute was already pending in an earlier suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice the pending Kericho ELC No. E001 of 2020(OS)
Yes. The parties and subject matter are the same in both suits and the issues are directly and substantially in issue in the earlier, pending suit.
The court summoned the earlier file and confirmed that the Originating Summons dated 16th September 2020 was filed between the same Plaintiff and Francis Arap Terer as administrator of the estate, over the same four parcels. In both suits the Plaintiff claims title to the same lands — as adverse possessor in the earlier suit and under an alleged sale agreement in the present one. Section 6 of the Civil Procedure Act bars trying a suit whose matter is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title; hearing both in parallel would violate the sub judice rule and the overriding objective of efficient use of judicial resources.
Whether the suit is barred by limitation under Section 7 of the Limitation of Actions Act
Argued by the Defendants but not expressly determined; the suit was dismissed on the sub judice ground.
The Defendants submitted that the cause of action arose in 1992 (with events in 1997, 2000, 2001 and 2003) and that an action to recover land cannot be brought after 12 years under Section 7 of the Limitation of Actions Act, relying on Gathoni v Kenya Co-operative Creameries Ltd. The court framed only the sustainability of the preliminary objection and the sub judice question for determination, and disposed of the matter on the sub judice ground without issuing an express holding on limitation.
Whether the joinder of the 5th Defendant (an advocate who drafted the sale agreements) was proper
Argued by the Defendants but not expressly determined; suit dismissed on sub judice.
The Defendants submitted that the 5th Defendant, an advocate authorised to draft legal instruments under Section 4 of the Contract Act and Section 24 of the Land Registration Act, was involved only in drafting the sale agreements, making his joinder improper and prejudicial. The court did not make a finding on this ground, having dismissed the suit on the sub judice ground arising from the preliminary objection.
Legal principles established
#- Where the test of res sub judice under Section 6 of the Civil Procedure Act is met, the later suit must be stayed until the earlier suit is heard and determined.
- A preliminary objection must be a pure point of law derived from statute, pleaded or arising by clear implication from the pleadings, and must not depend on facts to be ascertained.
Court orders
#- 1.The Notice of Preliminary Objection dated 26th February 2021 is upheld.
- 2.The Plaintiff's suit is dismissed with costs to the Defendants.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (implied from subject matter, land parcels in Kericho)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Kipkoskei Too v Francis Arap Terer & 5 others [2022] KEELC 1165 (KLR)", Case Analysis (2022). ELC suit (Kericho), application dated 16th February 2021; Notice of Preliminary Objection dated 26th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1165/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.