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ELCDismissedMurang'a ELC E007 OF 2021 (OS)· [2022] KEELC 2761 (KLR)

Kamau v Mburu (Environment & Land Case E007 of 2021) [2022] KEELC 2761 (KLR)

Environment and Land Court
30 June 2022
LGL. Gacheru
2,561 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to dismiss an adverse possession claim as sub judice, ruling that different parties and issues distinguish it from an earlier land suit, but stayed proceedings.

What this practically means

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Executive summary

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The Defendant/Objector (Lucy Wanjiru Mburu) filed a Notice of Preliminary Objection and a Notice of Motion, both dated 17th January 2022, seeking dismissal of the Plaintiff's Originating Summons dated 24th September 2021, which claimed one acre by adverse possession out of LOC. 8/Gaturi/52, on grounds that the suit was sub judice Murang'a MCELC Case No. 56 of 2020, in which she is plaintiff seeking a declaration of ownership, eviction and a permanent injunction, and in which her Counterclaim for specific performance over one acre is pending. The Plaintiff/Respondent opposed, contending the issues in the two suits were different and that the lower court lacked jurisdiction over adverse possession claims. The court, citing the Supreme Court's decision in KNCHR v Attorney General, held that res sub judice requires the same subject matter, sequentially instituted suits, competent courts, and the same parties or their representatives. It first found that the sub judice issue could not be determined via a Preliminary Objection, since it requires interrogation of material facts and pleadings, and dismissed the Preliminary Objection. On the merits, it found that although both suits concern the same land, the parties and issues differ: the earlier suit concerns proprietary rights and purchaser's rights, while the instant suit seeks adverse possession, whose ingredients differ in form and substance. The Notice of Motion was therefore dismissed entirely with costs to the Plaintiff/Respondent. However, acknowledging that the outcome of the earlier-filed MCELC suit could affect the instant suit, the court stayed further proceedings in the instant suit pending determination of Murang'a MCELC Case 56 of 2020.

Key legal issues

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01

Whether the issue of sub judice can be determined by way of Preliminary Objection

Holding

It cannot; determining sub judice requires examination of material facts and pleadings, taking it outside the scope of a Preliminary Objection

Reasoning

The court reasoned that determining whether the sub judice rule has been offended requires delving into material facts, calling for and interrogating pleadings to compare the issues in the two suits. A Preliminary Objection raises a pure point of law on assumed facts; where facts must be ascertained, the objection fails. The court adopted the holding in Henry Wanyama Khaemba v Standard Chartered Bank Ltd on this point.

p. 3
02

Whether the instant Originating Summons is res sub judice to Murang'a MCELC Case 56 of 2020

Holding

It is not; although both suits concern the same land, the parties and issues for determination differ

Reasoning

Applying the Supreme Court's four conditions for res sub judice, the court found two pending suits over the same parcel (LOC. 8/Gaturi/52), but the issues differ: the lower court suit concerns proprietary rights, eviction and injunction, while the Counterclaim therein is grounded on purchaser's rights, whereas the instant suit seeks adverse possession. The ingredients of adverse possession differ in form and substance from proprietary and purchaser's rights, and some parties in the earlier suit are absent here.

p. 5

Legal principles established

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  • A Preliminary Objection must stem from the pleadings and raise a pure point of law with no facts to be ascertained
  • The doctrine of res sub judice requires more than one suit over the same subject matter, one instituted before the other, both pending before competent courts, and the same parties or their representatives

Court orders

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  1. 1.The Preliminary Objection dated 17th January 2022 is found not merited and is dismissed
  2. 2.The Notice of Motion Application dated 17th January 2022 is found not merited and is dismissed entirely with costs to the Plaintiff/Respondent
  3. 3.Further hearing or proceedings of the instant suit are stayed pending hearing and determination of Murang'a MCELC Case 56 of 2020

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 6

Cases cited (4)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested parties)
    (2020) eKLR
  • Avtar Singh Bhamra & Another v Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Henry Wanyama Khaemba v Standard Chartered Bank LTD & Another
    [2014] eKLR
  • Patel v E.A Cargo Handling Services Ltd
    [1974] EA 75
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution; application brought under Section 6 of the Civil Procedure Act Cap 21

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, "Kamau v Mburu (Environment & Land Case E007 of 2021) [2022] KEELC 2761 (KLR)", Case Analysis (2022). Murang'a ELC E007 OF 2021 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2761/eng@2022-06-30

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