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ELCDismissedEnvironment & Land Case E069 of 2023· [2023] KEELC 21673 (KLR)

Shah v Dhiman (Suing as the Legal Representative of the Estate of Kanwal Sarjit Singh Dhiman)

Environment and Land Court
16 November 2023
JMJA Mogeni
3,089 words in judgment
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The bottom line

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A Nairobi land court refused to grant quick judgment over a Lavington property because the same ownership dispute is already pending before the Court of Appeal.

What this practically means

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Executive summary

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The plaintiff, Keshavji Jivraj Shah, filed a notice of motion dated 1/09/2023 seeking summary judgment against the defendant, Manjoyt Kaur Dhiman, as legal representative of the estate of Kanwal Sarjit Singh Dhiman, together with costs. The plaintiff relied on a judgment delivered on 19/09/2019 in Milimani Commercial Civil Suit No 205 of 1999 declaring him owner of LR No 209/8292/8 (elsewhere cited as 209/8192/8) Lavington, Nairobi, and a vesting order of 13/06/2006. The defendant filed a replying affidavit and a preliminary objection dated 12/09/2023 contending that the suit was incompetent, sub judice and barred by Section 6 of the Civil Procedure Act, and that the ex parte judgment had been set aside. She explained that the conditional stay of execution granted by the Court of Appeal in Civil Application No NAI 317 of 2019 lapsed on 2/08/2023 because the appeal was not filed and determined within one year, largely due to delay in obtaining typed proceedings, and that an application for enlargement of time had been filed with directions issued. Justice Mogeni framed two issues: whether the application was sub judice, and what orders should issue. Applying Mukisa Biscuit on preliminary objections, Section 6 of the Civil Procedure Act, and the Owners of Motor Vessel 'Lilian S' jurisdiction principle, the court found that the suit property and ownership were directly in issue in pending Civil Appeal E380 of 2023 before the Court of Appeal, and that issuing summary judgment would create parallel orders and interfere with the appeal's substratum. The court held it lacked jurisdiction and downed its tools. The preliminary objection was allowed, the application dismissed, with no order as to costs.

Key legal issues

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Whether the application for summary judgment is sub judice

Holding

Yes - the suit property and ownership issue are directly in issue in pending Civil Appeal E380 of 2023 before the Court of Appeal, so the court is barred by Section 6 of the Civil Procedure Act and lacks jurisdiction.

Reasoning

The court traced the chronology: judgment by Justice Makau on 19/09/2019, a conditional stay of execution granted by the Court of Appeal lapsing on 2/08/2023, and a pending appeal (E380 of 2023) against that judgment. Determining the summary judgment application would issue parallel orders and interfere with the substratum of the appeal. Section 6 bars trial of a matter substantially in issue in a previously instituted suit between the same parties.

p. 3
02

What orders should issue

Holding

The preliminary objection is allowed and the summary judgment application dismissed with no order as to costs.

Reasoning

Having found the matter sub judice and the court devoid of jurisdiction, the court invoked the principle that jurisdiction is everything and a court without jurisdiction must down its tools. The plaintiff was left at liberty to move the Court of Appeal if the appeal is inordinately delayed.

p. 6

Legal principles established

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  • A court must stay or decline to determine a matter that is directly and substantially in issue in a previously instituted suit between the same parties; where it finds the matter sub judice it lacks jurisdiction and must down its tools.
  • Summary judgment should only be entered in very clear cases where no bona fide triable issue is raised.

Court orders

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  1. 1.The preliminary objection dated 12/09/2023 is allowed
  2. 2.The plaintiff's notice of motion dated 1/09/2023 seeking summary judgment is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 5
  • Court of Appeal RulesRule 3
  • Civil Procedure Rules (Order 35)Order 35

Cases cited (8)

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

    Definition of what constitutes a preliminary objection - a pure point of law argued on assumed facts.

  • Owners of Motor Vessel "Lilian S" v Caltex Oil Kenya Ltd
    (1989) KLR 1

    Jurisdiction is everything; a court without jurisdiction must down its tools.

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR

    Explanation of the sub judice concept and staying of subsequent proceedings.

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

    Purpose and elements of the sub judice rule.

  • Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono
    [2015] eKLR

    Summary judgment only where no bona fide triable issue is raised.

  • Continental Butchery Limited v Samson Musila Ndura
    (Civil Appeal No 35 of 1997)

    Summary procedure under Order 35 applies only absent triable issues.

  • Moi University v Vishva Builders Limited
    (CA No 296 of 2004)

    Summary judgment principles (mentioned in support).

  • Ternic Enterprises Limited v Waterfront Outlets Limited
    [2018] eKLR

    Summary judgment principles (mentioned in support).

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; matter determined on Section 6 of the Civil Procedure Act (sub judice bar)

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, "Shah v Dhiman (Suing as the Legal Representative of the Estate of Kanwal Sarjit Singh Dhiman)", Case Analysis (2023). Environment & Land Case E069 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21673/eng@2023-11-16

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