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ELCOtherNot stated in the judgment· [2022] KEELC 3384 (KLR)

Ali v Ali (Environment & Land Case 58 of 2021) [2022] KEELC 3384 (KLR)

High Court of Kenya (as constituted to sit with/over Kadhi's Court matters, Mombasa)
27 July 2022
NMN.A. Matheka
769 words in judgment
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The bottom line

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Kenya's High Court ruled that a case cannot be blocked as 'sub judice' unless the same parties are fighting the same issues in another court.

What this practically means

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Executive summary

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In this ruling delivered at Mombasa on 27th July 2022, N.A. Matheka, Judge, determined a preliminary objection raised by the Respondent seeking to strike out the Applicant's Notice of Motion dated 5th April 2022. The Respondent argued that the application was fatally defective and incompetent because Section 6 of the Civil Procedure Act bars courts from entertaining matters sub judice, that a ruling had already been made in Kadhi's Court Succession No. 107 of 2020 on some of the same issues, and that the application was otherwise an abuse of process. The Applicant countered that he had locus standi, that the court had jurisdiction, that he was not a party to the succession case, and that he had not filed a similar application there. The court first set out the established test for preliminary objections from Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd and Oraro v Mbajja, confirming that a sub judice objection is a pure point of law properly raised preliminarily. It then reproduced Sections 6 and 7 of the Civil Procedure Act (the sub judice and res judicata bars). Examining the ruling in Kadhi's Court Succession No. 107 of 2020, which revoked an earlier grant in the Estate of Akbar Mohamed Haji Ali, the court found the Applicant was not a party to those proceedings and concluded the application was not sub judice. The preliminary objection was overruled, with costs to the Applicant.

Key legal issues

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01

Whether the sub judice objection (Section 6, Civil Procedure Act) was properly raised as a preliminary objection and whether it was merited

Holding

The sub judice question is properly raised as a preliminary objection, but the objection failed on the facts as found: the Applicant is not a party to the Kadhi's Court succession proceedings and no similar application was filed there, so the present application is not sub judice.

Reasoning

The court recited the classic definition of a preliminary objection from Mukisa Biscuit and Oraro v Mbajja, holding that a pure point of law may be raised preliminarily. It accepted that sub judice under Section 6 is such a point. However, perusing the ruling in Kadhi's Court Succession No. 107 of 2020 (which revoked an earlier grant in the Estate of Akbar Mohamed Haji Ali), the court found the Applicant was not a party there, so the same-parties requirement of Section 6 was not satisfied and the objection was overruled.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised
  • An assertion claiming to be a preliminary objection that bears factual aspects requiring proof is not a true preliminary objection
  • The sub judice bar in Section 6 of the Civil Procedure Act applies where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title

Court orders

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  1. 1.The preliminary objection is overruled
  2. 2.Costs to the applicant

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 6
  • Civil Procedure Act, Cap 21Section 7

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs Mbajja
    (2005) e KLR
Jurisdiction invoked
Original jurisdiction; the court applied Sections 6 and 7 of the Civil Procedure Act, Cap 21 (sub judice and res judicata bars)

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, "Ali v Ali (Environment & Land Case 58 of 2021) [2022] KEELC 3384 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3384/eng@2022-07-27

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