Waweru & another (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others (Environment & Land Case 18 of 2021) [2022] KEELC 2324 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Sub judice
The suit is not sub judice. Although several suits concern the same parcel of land, the issues are not directly and substantially the same and the parties are not the same; the Malindi petition concerns constitutionality of the NLC Act and the JR case seeks to quash the NLC decision.
Applying Section 6 of the Civil Procedure Act and the Supreme Court's test in KNCHR v AG, the court compared the substance of the suits. The instant suit concerns fraud, customary trust and adverse possession, issues requiring evidence and cross-examination unsuited to constitutional or judicial review proceedings. The parties in the referred suits also differ. Sub judice therefore was not established and the court affirmed its jurisdiction.
Limitation of actions
The suit is not statutory barred because the plaintiffs' claim rests on customary trust, and Section 20(1)(a) of the Limitation of Actions Act exempts beneficiaries' actions for fraud or fraudulent breach of trust from limitation periods.
Though the pleadings trace the grievance to historical injustices of 1885/1966, the court found the history lays a basis for a claim of customary trust. Under Section 20(1)(a), limitation does not apply to an action by a beneficiary in respect of fraud or fraudulent breach of trust. Whether a trust exists can only be determined at full hearing, so the limitation objection fails at the preliminary stage.
Whether the suit should be dismissed/struck out
The application for dismissal fails; the court has jurisdiction and the Applicant showed no prejudice.
Jurisdiction is the power of a court to hear a matter. Since the suit is neither sub judice nor statutory barred, no basis for dismissal exists. The plaintiffs instituted the NLC claim as required and any other referenced suits were filed by the Applicant. However, noting overlapping litigation on the same property, the court stayed the suit for 90 days to enable the Applicant to update it on the status of the related cases.
Legal principles established
#- To invoke the sub judice doctrine, a party must establish more than one suit over the same subject matter, one instituted before the other, both pending before competent courts, and between the same parties or their representatives
- It is the substance, not the form, of a suit that determines whether it is sub judice
- No period of limitation applies to an action by a beneficiary under a trust in respect of fraud or fraudulent breach of trust (Section 20(1)(a) Limitation of Actions Act)
- Fraud must be specifically pleaded and distinctly proved, and cannot be left to be inferred from facts
Court orders
#- 1.The Notice of Motion dated 17th September 2021 is dismissed entirely with costs to the Respondents
- 2.The instant suit is stayed for 90 days to allow the Applicant to file in this Court the status of all the mentioned cases
- Jurisdiction invoked
- Articles 162(2)(b) and 159(2)(d) of the Constitution; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru & another (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others (Environment & Land Case 18 of 2021) [2022] KEELC 2324 (KLR)", Case Analysis (2022). ELC No. 18 of 2021 (formerly ELC No. 18 of 2021, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2324/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.