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ELCStruck OutNot stated in the excerpt (Homa Bay ELC suit)· [2024] KEELC 1693 (KLR)

Simon v Adel (Environment & Land Case E006 of 2023) [2024] KEELC 1693 (KLR)

Environment and Land Court
8 April 2024
GOG. M. A Ong'ondo
1,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, represented by Quinter Adoyo & Company Advocates, sued the defendant claiming to be the absolute proprietor of land parcel K/Kalanya/Kanyango/3129 (0.06 Ha). He alleged that on 11th May 2023 the defendant served him with an unlawful seven-day eviction notice despite a prior judgment of the ELC in Homa Bay ELC Appeal No. E005 of 2021. He sought quashing of the eviction notice, a declaration that any suit by the defendant over the parcel was res judicata, an order restraining interference with the parcel, plus costs and interest. The defendant, through Aluoch Odera & Nyauke Advocates, filed a statement of defence raising a preliminary objection that the court lacked jurisdiction and that the suit was sub judice, given Rent Restriction Tribunal Case No. E038 of 2023 at Kisumu over the same subject matter and parties, which the ELC had directed should hear the dispute in the first instance. After written submissions, the court, citing Mukisa Biscuit on preliminary objections, section 6 of the Civil Procedure Act on sub judice, and the principle that want of jurisdiction renders a decision void, held that the Tribunal has first-instance jurisdiction and the suit was sub judice. The preliminary objection was upheld and the suit struck out with no orders as to costs. Dated and delivered at Homa Bay on 8th April 2024.

Key legal issues

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01

Sub judice

Holding

The suit is sub judice because the same parties and subject matter are pending before the Rent Restriction Tribunal in Case No. E038 of 2023, which the ELC directed should hear the dispute in the first instance

Reasoning

The defendant filed Rent Restriction Tribunal Case No. E038 of 2023 over the same subject matter and between the same parties, pursuant to the direction in Homa Bay ELC Appeal No. E005 of 2021 that the Tribunal has jurisdiction in the first instance. Section 6 of the Civil Procedure Act therefore bars the simultaneous suit, which must be struck out.

p. 3
02

Jurisdiction

Holding

The court lacks jurisdiction over the dispute in the first instance, as jurisdiction vests in the Rent Restriction Tribunal

Reasoning

Applying the prior direction in Homa Bay ELC Appeal No. E005 of 2021 (paragraph 24) that the Rent Restriction Tribunal has jurisdiction over the dispute in the first instance, and since the same parties and subject matter are before the Tribunal, this court is devoid of jurisdiction; a decision made without jurisdiction is void.

p. 3

Legal principles established

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  • A preliminary objection consists of a point of law which, if argued, will dispose of the suit
  • Lack of jurisdiction renders a court's decision void and a nullity
  • The sub judice rule in section 6 of the Civil Procedure Act bars simultaneous litigation of the same matter between the same parties in two fora

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Suit struck out
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (7)

  • Kakuta Maimai Hamisi v Peris Pesi Tobiko and 2 others
    (2013) eKLR
  • Kenya Bankers’ Association v Kenya Revenue Authority
    (2019) eKLR
  • James Katabazi & 21 others v The Attorney General of the Republic of Uganda
    Reference number 1 of 2007
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors
    (1969) EA 696
  • Judicial Commission of Inquiry into Goldenberg Affair & 3 others v Kilach
    (2003) KLR 249
  • Macfoy v United Africa Company Ltd
    (1961) 3 ALL ER 1169
  • Republic v Karisa Chengo & 2 others
    (2007) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the ELC Act; suit struck out for lack of first-instance jurisdiction vis-à-vis the Rent Restriction Tribunal

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, "Simon v Adel (Environment & Land Case E006 of 2023) [2024] KEELC 1693 (KLR)", Case Analysis (2024). Not stated in the excerpt (Homa Bay ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1693/eng@2024-04-08

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