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ELCDismissedConstitutional Petition E001 of 2022· [2022] KEELC 14467 (KLR)

Kiyo & another v Kangemi Rumwe Women Group Limited & 3 others; Njuguna (Interested Party)

Environment and Land Court
31 October 2022
MMM.D. Mwangi
2,259 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a sub-judice objection cannot be used to strike out a case without first examining the facts.

What this practically means

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Executive summary

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The respondents filed a preliminary objection dated 18 January 2022 seeking to strike out the petitioners' constitutional petition on the grounds that it was sub-judice HCCC/E297/2021 (Kangemi Rumwe Women Group Limited & Serah Muthoni Munywa v Josephine Waithira Njuguna & 2 others), that the same matters were substantially in issue in that suit between parties litigating under the same title, and that the petition was defective, vexatious and an abuse of process. The petitioners, through a replying affidavit of the 1st petitioner, opposed the objection, asserting they were not parties to the High Court suit, that the petition raised distinct constitutional issues concerning property rights under article 40, and that sub-judice was not a pure point of law. The court directed disposal by written submissions. Framing the threshold question as whether the objection qualified as a preliminary objection, M.D. Mwangi J applied the Mukisa Biscuits definition and the decision in Margaret Wachu Karuri, holding that determining whether the issues in the petition were directly and substantially in issue in the High Court suit would require ascertaining facts, probing evidence and comparing the prayers in both matters. Such an exercise falls outside a preliminary objection on a pure point of law. The court found the objection was not a preliminary objection, dismissed it, and awarded costs to the petitioners. The substantive question of sub-judice was left open for determination at the hearing of the petition.

Key legal issues

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01

Whether the objection on sub-judice qualifies as a preliminary objection

Holding

It does not; establishing sub-judice requires probing evidence and comparing issues and prayers between the two suits, which is beyond a pure point of law.

Reasoning

Applying Mukisa Biscuits and Margaret Wachu Karuri, the court held that a preliminary objection must rest on a pure point of law assuming pleaded facts are correct. To decide whether the petition is directly and substantially in issue in HCCC/E297/2021, the court must ascertain facts, probe evidence and interrogate the prayers in both matters. That exercise disqualifies the objection from being a preliminary objection.

p. 5

Legal principles established

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  • A preliminary objection cannot be raised where facts have to be ascertained or where the court is called upon to exercise judicial discretion
  • Whether a suit is sub-judice another requires factual comparison of issues and prayers and so cannot be determined on a preliminary objection

Court orders

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  1. 1.The respondents' preliminary objection dated 18th January 2022 is dismissed
  2. 2.Costs of the preliminary objection to the petitioners

Authorities

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Legislation

  • Trustee Actsection 56
  • Civil Procedure Actsection 6
  • Environment and Land Court Actsection 13(3)
  • Constitution of Kenyaarticle 40

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu HCCC No 22 of 1999

    Preliminary points must dispose of the matter without ascertaining facts from elsewhere

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others
    (2012) eKLR

    Conditions for invoking the sub-judice rule

  • Margaret Wachu Karuri v John Waweru Ribiro
    (2021) eKLR

    Sub-judice cannot be raised as a preliminary objection where facts must be ascertained

  • Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another
    (2022) eKLR

    Cited by petitioners on preliminary objections and sub-judice

  • Republic v Paul Kariuki, Attorney General & 2 others ex parte Law Society of Kenya
    (2020) eKLR

    Cited by respondents in support of the objection

Jurisdiction invoked
Article 165 Constitution; section 13(3) Environment and Land Court Act (invoked by petitioners)

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, "Kiyo & another v Kangemi Rumwe Women Group Limited & 3 others; Njuguna (Interested Party)", Case Analysis (2022). Constitutional Petition E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14467/eng@2022-10-31

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