Ware Transport Limited v The Third Engineering Bureau of China City Construction Group Company Limited & Tiba Freight Forwarders Limited (Third Party)
The bottom line
#Kenya's Environment and Land Court stayed a duplicate trespass suit because the same claim was already before another court, and the filer must pay costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's objection qualified as a preliminary objection on a pure point of law
The court treated the objection as raising a legal bar under Section 6 and proceeded to determine it notwithstanding the fact-contention
The court set out the Mukisa Biscuit test and its progeny (Nitin Properties, United Insurance, In the matter of Siaya Resident Magistrate's Court), then considered the grounds of the objection. Although the Plaintiff argued that sub judice depends on disputed facts, the court found the suit barred by the operation of Section 6 on the face of the pleadings, without needing to ascertain facts beyond the documents and admissions already before it.
Whether the suit is res sub judice under Section 6 of the Civil Procedure Act
Yes. The suit is directly and substantially in issue in the earlier Mombasa ELC 64 of 2013 suit and was stayed
Applying Section 6 and the Supreme Court's guidelines in the KNCHR case, the court found that the same plaintiff, the same suit property (LR No. MN/V/2407 at Kibarani) and an identical trespass claim and relief (vacation/dismantling of structures) were already in issue in ELC 64 of 2013, instituted earlier. Notably, the Defendant in this suit was not a party to the earlier suit, a fact the Plaintiff pressed, but the court nonetheless held the suit barred and stayed it.
Who bears the costs of the preliminary objection
The Plaintiff, as costs follow the event and the Defendant succeeded
Relying on Section 27(1) of the Civil Procedure Act and Morgan Air Cargo Limited v Evrest Enterprises Limited, the court held costs are discretionary but follow the event unless good reason exists otherwise. Having succeeded on the objection, the Defendant was awarded the costs of the preliminary objection against the Plaintiff.
Legal principles established
#- A preliminary objection must rest on a pure point of law and cannot be raised where facts have to be ascertained
- Where a suit is barred by Section 6 of the Civil Procedure Act, the court lacks authority to hear and determine it, and the later-filed suit must be stayed pending determination of the earlier suit
- Costs follow the event unless the court for good reason orders otherwise
Court orders
#- 1.The Preliminary objection dated 28th September, 2023 is found to have merit and is sustained
- 2.The suit filed by the Plaintiff through the Plaint dated 21st December, 2021 against the Defendant is stayed pending the hearing and final determination of Mombasa ELC 64 of 2013: Ware Transport Limited v Tiba Freight Forwarders Limited and 4 others pursuant to Section 6 of the Civil Procedure Act, Cap 21
- 3.Costs of the Preliminary Objection dated 28th September, 2023 by the Defendant to be borne by the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (suit on land); objection under Section 6 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Anti – Corruption Commission v Lobo & another (Sued as legal representative/administrator of the Estate of Paul Lobo Benard Atati) & another (Environment & Land Case 175 of 2009) [2024] KEELC 5261 (KLR)[2024] KEELC 5261 (KLR)2 Jul 2024
- Kenya Anti – Corruption Commission v Lobo & Desa (Sued as Legal Representative/ Administrator of the Estate of Paul Lobo Benard Atati) & another (Environment & Land Case 175 of 2009) [2024] KEELC 4511 (KLR)[2024] KEELC 4511 (KLR)30 May 2024
Cite this brief
#Cite this brief
Caselaw, "Ware Transport Limited v The Third Engineering Bureau of China City Construction Group Company Limited & Tiba Freight Forwarders Limited (Third Party)", Case Analysis (2024). Mombasa ELC 252 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1550/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.