Alausi & another v Mussani & 8 others (Environment & Land Case 5 of 2021) [2022] KEELC 3745 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that preliminary objections cannot be used to kill a land suit when the issues depend on disputed facts that need evidence at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the sub judice objection was a proper preliminary objection
It was not; sub judice depends on facts such as the similarity of parties, subject matter and pendency of the earlier suit, which require evidence
The court applied the settled principle from Aviation & Allied Workers Union and Jane Cheperenger that preliminary objections must rest on pure points of law. Section 6 of the Civil Procedure Act requires proof that a previously instituted suit between the same parties over the same subject matter is pending. The plaintiff argued, correctly in the court's view, that the pleadings and status of the cited suit were not placed before the court, so the factual predicate could not be established on a preliminary objection.
Whether the suit discloses no cause of action because Plot No 141 Malindi was subdivided
The alleged subdivision, existence of new titles and fulfillment of the memorandum of understanding are matters for trial, not a preliminary objection
The 3rd defendant argued the suit land had ceased to exist following subdivision into new portions in March 2013 and that an MOU of February 26, 2014 had been fulfilled, barring suit by estoppel. The court held these were contested factual issues that must be ascertained vide evidence at the hearing, where the court would either dismiss the case or allow the prayers upon proof. A preliminary objection cannot be sustained on such disputed facts.
Whether sub judice/res judicata can be raised by preliminary objection rather than formal application
The court accepted the plaintiff's objection that such issues require a factual foundation, aligning with authority that they are improperly raised as preliminary objections
Relying on George Kamau Kimani and Henry Wanyama Khaemba, the plaintiff argued that sub judice could only be raised by Notice of Motion with the pleadings of the cited suits annexed. The court endorsed the Khaemba reasoning that issues of res judicata and duplicity of suits require probing of evidence and are incapable of being handled as preliminary objections, given the limited scope of that jurisdiction.
Legal principles established
#- A preliminary objection may only be raised on a pure question of law, not on disputed facts requiring evidence
- Sub judice under section 6 of the Civil Procedure Act requires proof of pendency of a previously instituted suit between the same parties over the same subject matter, which is a factual matter incapable of resolution on a preliminary objection where facts are disputed
Court orders
#- 1.The preliminary objection dated February 1, 2022 is dismissed
- 2.Costs of the preliminary objection to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit on land in Malindi); ruling on a preliminary objection raised under section 6 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alausi & another v Mussani & 8 others (Environment & Land Case 5 of 2021) [2022] KEELC 3745 (KLR)", Case Analysis (2022). Land Case No 5 of 2021 (formerly Malindi ELC No 5 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3745/eng@2022-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.