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ELCStruck OutNot stated in the extract (Plaint dated 16th November 2021, Environment and Land Court)· [2022] KEELC 2045 (KLR)

Marianne Jebet Kitany v Franklin Mithika Linturi; Atticon Limited (Interested Party) [2022] KEELC 2045 (KLR)

Environment and Land Court
17 January 2022
2,974 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out Kitany's property suit against Linturi because the same dispute was already pending in earlier cases.

What this practically means

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Executive summary

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By a Plaint dated 16th November 2021, Maryanne Jebet Kitany sued Franklin Mithika Linturi seeking a declaration that he holds Mae Ridge County Villas No. 16 on L.R No. 7785/1324 (I.R 123703) in trust for her and the interested party, permanent injunctions against alienation and eviction, dissolution of the trust with transfer of the property, and costs. Together with a Notice of Motion dated 17th November 2021 seeking status quo and interim injunction orders, the application was opposed by the Defendant and interested party through a replying affidavit and a Notice of Preliminary Objection contending that the suit and application were sub judice four pre-existing suits between the same parties or their privies concerning the same property, contrary to Section 6 of the Civil Procedure Act, and that granting the reliefs would affect third-party rights. The Plaintiff, in written submissions supported by several authorities, contended that the ownership and resulting trust claim was new and not pending elsewhere. The court, applying Mukisa Biscuit, Nitin Properties, the Joho decision and KNCHR v Attorney General, found a nexus between the suits: all related to the suit property and involved the same parties, with trust already pleaded in Milimani HCCC No. 71 of 2018 (OS) and interlocutory orders already in place in that suit and in Milimani CMCC No. 1044 of 2018. Holding that proceeding risked conflicting orders, the court upheld the preliminary objection, discharged the interim orders of 18th November 2021, struck out the Notice of Motion, the Plaint and the entire proceedings, with no orders as to costs.

Key legal issues

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01

Whether the preliminary objection dated 24th November 2021 (res sub judice) is merited

Holding

Upheld; the suit and application were sub judice several earlier suits between the same parties concerning the same property

Reasoning

The court found that the instant suit, seeking a declaration of trust and injunctive relief over Mae Ridge County Villa No. 16, overlapped with pending suits between the same parties, notably Milimani HCCC No. 71 of 2018 (OS) and Milimani CMCC No. 1044 of 2018, where interlocutory orders over the same property were in force. Proceeding would risk conflicting orders by courts of concurrent jurisdiction. The trust claim pleaded here had also been pleaded in the 2018 suit.

p. 4
02

Whether the Plaintiff's claim of resulting trust over the suit property was a new matter not caught by sub judice

Holding

Rejected; the issue of trust had already been pleaded in the pending Milimani HCCC No. 71 of 2018 (OS)

Reasoning

The Plaintiff argued that ownership and resulting trust were fresh questions not pending elsewhere. The court perused the earlier plaint and found that trust had been pleaded and was among the prayers sought there, so the present suit was substantially the same matter litigated in the earlier, still-pending 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 all facts pleaded by the other side are correct
  • Section 6 of the Civil Procedure Act bars a court from trying a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or their privies
  • A party invoking res sub judice must establish multiple suits over the same subject matter, one instituted before the other, both pending before competent courts, and between the same parties or their representatives

Court orders

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  1. 1.The interim orders issued on 18th November 2021 are discharged
  2. 2.The Notice of Motion dated 17th November 2021 is struck out
  3. 3.The Plaint dated 16th November 2021 and the entire proceedings are struck out with no orders as to costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to land (L.R No. 7785/1324 (I.R 123703))

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, "Marianne Jebet Kitany v Franklin Mithika Linturi; Atticon Limited (Interested Party) [2022] KEELC 2045 (KLR)", Case Analysis (2022). Not stated in the extract (Plaint dated 16th November 2021, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2045/eng@2022-01-17

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