Marianne Jebet Kitany v Franklin Mithika Linturi; Atticon Limited (Interested Party) [2022] KEELC 2045 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection dated 24th November 2021 (res sub judice) is merited
Upheld; the suit and application were sub judice several earlier suits between the same parties concerning the same property
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.
Whether the Plaintiff's claim of resulting trust over the suit property was a new matter not caught by sub judice
Rejected; the issue of trust had already been pleaded in the pending Milimani HCCC No. 71 of 2018 (OS)
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.
Legal principles established
#- 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
#- 1.The interim orders issued on 18th November 2021 are discharged
- 2.The Notice of Motion dated 17th November 2021 is struck out
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.