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ELCDismissedCivil Suit No E137 of 2020· [2022] KEELC 1594 (KLR)

Idris Barasa Bongo & 17 others v Kiambu Dandora Farmers Co. Ltd & 17 others [2022] KEELC 1594 (KLR)

Environment and Land Court
31 January 2022
2,189 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a preliminary objection, ruling the suit was not sub judice because the earlier cases involved different parties and land.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) dated 31st January 2022 on a preliminary objection dated 15th December 2020 raised by the 1st, 9th and 12th Defendants, supported by the 5th Defendant. The objection was that the plaintiffs' suit was sub judice in view of four previously instituted matters: ELC Petition No. 47 of 2011 (Abilahi Muiruri Muigai v NLC), ELC 352 of 2019 (Dr. Benard Nzioka Mua v Kiambu Dandora Farmers Company Ltd), Nairobi JR Misc. Application No. 35 of 2018 (Republic v NLC Exparte Samuel Wachira Wanja) and ELC 243 of 2020 (Dynamic Sisters Enterprises Ltd v Kiambu Dandora Farmers Company Ltd), all pending before courts of competent jurisdiction, contrary to Section 6 of the Civil Procedure Act. The plaintiffs, through separate counsel, opposed, distinguishing each cited suit: different parties, different parcels of land (disputes over subdivisions of L.R 15400 rather than the suit property), a judicial review challenging an NLC determination over L.R 11379/3, and the withdrawal of Dynamic Sisters Enterprises Limited (formerly the 7th plaintiff) from this suit. The court restated the classic definition of a preliminary objection (Mukisa Biscuit; Nitin Properties; Joho) and the elements of sub judice per the Supreme Court in KNCHR v AG: same subject matter, earlier institution, competent courts and same parties or those claiming under them. Finding that the defendants had not attached the pleadings of the cited suits to establish a nexus, and that on the court's own perusal the matters differed in parties and subject matter, the court held the suit was not sub judice and dismissed the preliminary objection with costs to the 1st–6th and 8th–18th Plaintiffs.

Key legal issues

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Whether the suit is sub judice under Section 6 of the Civil Procedure Act

Holding

The suit is not sub judice; the previously instituted suits concern different parties and different parcels of land, so Section 6 is not attracted

Reasoning

The court applied the four elements of sub judice set out by the Supreme Court in KNCHR v AG: same subject matter, earlier suit, competent courts, and same parties or those claiming under them. The defendants did not attach pleadings of the cited suits to establish the nexus. On perusal, ELC Petition 47/2011 and ELC 352/2019 concern different parties and parcels; JR 35/2018 concerned a NLC determination over L.R 11379/3; and Dynamic Sisters (ELC 243/2020) had withdrawn from this suit.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct
  • Elements of res sub judice: multiple suits over the same subject matter, earlier institution, pending before competent courts, and same parties or their representatives
  • Purpose of sub judice is to prevent parallel litigation on the same cause of action, subject matter and relief to avoid contradictory verdicts

Court orders

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  1. 1.The preliminary objection dated 15th December 2020 (filed by the 1st, 9th and 12th Defendants) is dismissed
  2. 2.Costs of the preliminary objection to the 1st–6th Plaintiffs and 8th–18th Plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Oraro –v- Mbaja
    [2007] KLR 141
  • Hassan Ali Joho & another -v- Suleiman Said Shabal & 2 Others
    SCK Petition No. 10 of 2013 [2014] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • David Ndii & others versus Attorney General & Others
    2021 eKLR
  • Kenya National Commission on Human Rights v Attorney General, IEBC & 16 Others
    [2020]
  • Edward Akong’o Oyugi & 2 Others v Attorney General
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court (not expressly stated in the ruling); ruling decided under Section 6 of the Civil Procedure Act

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, "Idris Barasa Bongo & 17 others v Kiambu Dandora Farmers Co. Ltd & 17 others [2022] KEELC 1594 (KLR)", Case Analysis (2022). Civil Suit No E137 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1594/eng@2022-01-31

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