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ELCStruck OutPetition dated 15th July 2021 (ELC, Mombasa)· [2022] KEELC 2097 (KLR)

Abdul Hamid Ebrahim v County Government of Mombasa & 9 others [2022] KEELC 2097 (KLR)

Environment and Land Court
20 January 2022
NMN.A. Matheka
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Applicant/Petitioner filed a petition under Articles 22 and 23 of the Constitution seeking, inter alia, interim injunctions restraining the 5th to 10th Respondents from developing, sub-dividing or selling Plot Sub-division No. 6747/I/MN in Bombolulu, Mombasa, and a site visit by the Deputy Registrar with a valuer. He claimed to be the beneficial owner of the property, registered in the name of the Assistant Public Trustee, and alleged that the Respondents' constructions lacked NEMA approval and an Environmental Impact Assessment. The 5th to 10th Respondents raised a preliminary objection contending that the dispute over the same plot was already pending in CMCC ELC No 147 of 2019 and ELC Misc No 17 of 2021, with interim orders in place, and that the petition clothed a civil dispute as a constitutional petition to circumvent those orders, contrary to the sub judice rule and the doctrine of constitutional avoidance. The court applied the Mukisa Biscuit and Oraro v Mbajja tests, held that sub judice was properly raised as a preliminary objection as a pure point of law, and applying sections 6 and 7 of the Civil Procedure Act found the parties and subject matter of the petition identical to the pending suits. The objection was sustained; the suit was struck out with costs, and the interlocutory application fell away as there was no longer any suit to determine. The Applicant was left to pursue any orders in the earlier files.

Key legal issues

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01

Whether the question of sub judice can properly be raised as a preliminary objection

Holding

Yes - it raises a pure point of law arising from the existence of prior suits, without needing factual investigation beyond perusal of the pleadings

Reasoning

The court applied the Mukisa Biscuit and Oraro v Mbajja tests: a preliminary objection must be a pure point of law not dependent on ascertainment of facts or exercise of discretion. Because the existence and parties of the prior suits (CMCC ELC No 147 of 2019 and ELC Misc No 17 of 2021) were admitted and verifiable from the pleadings, the sub judice objection qualified as a true preliminary objection.

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02

Whether the petition is sub judice under sections 6 and 7 of the Civil Procedure Act

Holding

Yes - the parties and subject matter (ownership of Plot Sub-Division No. 6747/I/MN) are the same as in the pending CMCC ELC No 147 of 2019 and ELC Misc No 17 of 2021 suits

Reasoning

The court perused the pleadings in the two cited prior suits and found that the Petitioner had admitted their existence, that the subject matter in both was ownership of Plot Sub-Division No. 6747/I/MN, and that the parties were similar. Section 6/7 of the Civil Procedure Act therefore barred this petition; any orders should be sought in those files.

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Legal principles established

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  • Where a matter is directly and substantially in issue in a previously instituted suit between the same parties or parties claiming under the same title, the later suit is sub judice and should not proceed

Court orders

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  1. 1.Preliminary objection sustained on ground of sub judice
  2. 2.The suit (petition) struck out with costs
  3. 3.Application of 15th July 2021 not determined as the suit stands struck off

Authorities

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Legislation

  • Constitution of KenyaArticles 22 and 23
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 23 and 24
  • Civil Procedure ActSections 6 and 7 (Cap 21)
  • Environmental Management and Co-ordination Act (EMCA)Cap 387

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    (2005) eKLR
Jurisdiction invoked
Articles 22 and 23 of the Constitution; Rule 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Abdul Hamid Ebrahim v County Government of Mombasa & 9 others [2022] KEELC 2097 (KLR)", Case Analysis (2022). Petition dated 15th July 2021 (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2097/eng@2022-01-20

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