Kathumo v Nzuki & another (Environment and Land Appeal 37 of 2021) [2023] KEELC 434 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a magistrate wrongly struck out a land suit on res judicata grounds without hearing the parties, restoring the case for full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate properly framed a res judicata issue under section 7 of the Civil Procedure Act suo motu
The trial court erred by abandoning the sub judice question raised by the parties and framing a new res judicata question without hearing the parties, contrary to article 50 of the Constitution.
The preliminary objection was expressly anchored on section 6 of the Civil Procedure Act. The trial court, without any justification, shifted to section 7 (res judicata) and made a finding on it. Issues must stem from what is filed on record; where a court perceives an unpleaded issue, it should invite the parties to address it before making a finding. Determining it sua sponte deprived the appellant of a hearing.
Whether sub judice could be established via a preliminary objection supported by evidence attached to submissions
No. Sub judice involves contested facts requiring proof by affidavit; attaching evidence to submissions is an improper procedure and the objection was not a proper preliminary objection.
A preliminary objection must rest on pure points of law on the assumption that all pleaded facts are correct (Mukisa Biscuit). The 1st respondent purported to prove sub judice by attaching evidence to submissions, which 'sneaked' evidence onto the file and left the opposite party with no procedural means of response. The trial court erred in relying on it.
Whether section 6 of the Civil Procedure Act authorises striking out a suit on sub judice grounds
No. Section 6 only bars proceeding with the trial of the later suit; the sole available remedy is a stay of proceedings. Striking out pertains to res judicata under section 7 where the former suit has been conclusively determined.
The doctrine of sub judice under section 6 stops a court from trying a suit where the matter is pending in a previously instituted suit between the same parties. Even where all elements are proved, the court can only stay the proceedings. The Succession Cause was pending, not determined, so no striking out was possible.
Legal principles established
#- A court ought not to introduce and determine a new issue not raised by the parties without giving them an opportunity to be heard
- Sub judice cannot be proved by evidence attached to submissions; it must be raised by Notice of Motion with supporting affidavit
- Submissions are not evidence
- Under section 6 of the Civil Procedure Act the only remedy for sub judice is a stay of proceedings, not striking out
Court orders
#- 1.The lower court order made on July 27, 2021 is set aside
- 2.The order is substituted with an order dismissing the 1st Respondent's preliminary objection
- 3.The costs of the appeal are awarded to the appellant
- On appeal from
- Senior Resident Magistrate's Court, Kangundo
- Kangundo CMCC ELC No. 171 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Civil Procedure Act appeal from the magistrate's court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathumo v Nzuki & another (Environment and Land Appeal 37 of 2021) [2023] KEELC 434 (KLR)", Case Analysis (2023). Appeal from Kangundo CMCC ELC No. 171 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/434/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.