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ELCAllowedAppeal from Kabarnet MELC No. 38 of 2022· [2024] KEELC 4 (KLR)

Sergon v Kiprop (Environment and Land Appeal E009 of 2023) [2024] KEELC 4 (KLR)

Environment and Land Court
15 January 2024
LWL. N. Waithaka
2,326 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 requiring proof of facts cannot end a land suit—stay, not dismissal, is the right remedy.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kabarnet against a ruling by Hon. Caroline Ateya SRM dated 5th May 2023 in Kabarnet MELC No. 38 of 2022, upholding a preliminary objection that the appellant's trespass and injunction suit over L.R Baringo/Kiboino 'B'/427 was res sub judice Iten ELC Case No. E006 of 2022 (an adverse possession suit). The trial court dismissed the suit with costs. The appellant appealed on three broad grounds: that the objection was not a pure point of law; that the magistrate considered unpleaded factual matters (including that the respondent was Joshua Kiprop's brother); and that the appellant's submissions were ignored. The appellant also argued that dismissal was wrong, the remedy being stay. On written submissions, the court applied Cyrus Mucebiu Irungu v Martha Wanjiru Irungu and Margaret Wachu Karuri, holding that contested issues of fact - the identity of issues and parties between the two suits - required evidence, especially as the respondent annexed no pleadings from the Iten suit. It further applied Kinatwa Co-operative, holding that where a suit is res sub judice, absent abuse of process, the proper order is stay or consolidation, not dismissal. The court found the appeal merited and allowed it as prayed. Dated, signed and delivered on 15th January 2024 by Hon. L. N. Waithaka J.

Key legal issues

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01

Whether sub judice can be raised as a preliminary objection

Holding

The court held that in this case the issues of fact (identity of issues and parties) were contested and required evidence, so the preliminary objection was improperly upheld.

Reasoning

Relying on Cyrus Mucebiu Irungu and Margaret Wachu Karuri, the court found that where the existence of the same issues and parties is contested and pleadings from the earlier suit were not annexed, facts must be ascertained through evidence; submissions cannot substitute for that proof.

p. 4
02

Correct remedy where a suit is res sub judice

Holding

Dismissal was the wrong remedy; stay pending determination of the former suit, or consolidation if sought, is the proper order.

Reasoning

Following Kinatwa Co-operative Savings & Credit Society Limited v Kinatwa Prestige Ltd, the court adopted the position that Section 6 of the Civil Procedure Act contemplates staying the subsequent suit, not striking it out, unless it is an abuse of process.

p. 5

Legal principles established

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  • Whether a suit is res sub judice may require ascertaining facts, and therefore is not always a pure point of law suitable for a preliminary objection.
  • Where a suit is res sub judice, absent a finding of abuse of process, the proper order is stay (or consolidation if sought), not dismissal.

Court orders

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  1. 1.The appeal is allowed as prayed
  2. 2.The subordinate court's decision/order dismissing the appellant's suit is set aside

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (4)

  • Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another
    (2022) eKLR
  • Margaret Wachu Karuri v John Waweru Ribiro
    (2021) eKLR
  • Kinatwa Co-operative Savings & Credit Society Limited v Kinatwa Prestige Ltd
    (2021) eKLR
  • Mukisa Biscuits Case
On appeal from
Chief Magistrate's Court (Environment and Land), Kabarnet
Kabarnet MELC No. 38 of 2022
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over subordinate court land disputes (first appeal against ruling on preliminary objection)

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, "Sergon v Kiprop (Environment and Land Appeal E009 of 2023) [2024] KEELC 4 (KLR)", Case Analysis (2024). Appeal from Kabarnet MELC No. 38 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4/eng@2024-01-15

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