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ELCDismissedNot stated in the judgment provided· [2024] KEELC 4934 (KLR)

Muntet & another v Muntet & another (Environment & Land Case E004 of 2024) [2024] KEELC 4934 (KLR)

Environment and Land Court
24 June 2024
MCMbogo C.G.
1,541 words in judgment
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The bottom line

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Kenya's Environment and Land Court threw out a defendant's attempt to kill a land suit early, because proving the point needed evidence, not just legal argument.

What this practically means

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Executive summary

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The Environment and Land Court (Hon. Mbogo C.G., Judge) delivered a ruling on a notice of preliminary objection dated 8th May 2024, by which the 2nd defendant/respondent sought to defeat the plaintiffs/applicants' notice of motion dated 21st March 2024. The objection raised three grounds: that the suit property, LR No. Cis-Mara/Oldonyo-Rasha/527, is the subject of a pending suit (ELCLC E008 of 2023, Enforce Limited v Taatai Ole Muntet & Another) in the same court, rendering this suit sub judice under Section 6 of the Civil Procedure Act; that the plaintiffs lack locus standi having no evidence of proprietorship; and that the application is an abuse of process made in bad faith. Counsel for the plaintiffs responded that the objection was not founded on the pleadings, that the two suits involve different parties and distinct reliefs, and that the plaintiffs assert their own constitutional property rights under Article 40. In written submissions, the plaintiffs relied on authorities on sub judice and preliminary objections. The court set out the classic definition of a preliminary objection in Mukisa Biscuits and related authorities, holding that such an objection must be a pure point of law argued on the pleadings, without ascertaining facts or exercising discretion. It found that determining sub judice here would require evidence, defeating the very nature of a preliminary objection. The court dismissed the preliminary objection and made no orders as to costs.

Key legal issues

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01

Whether the doctrine of sub judice under Section 6 of the Civil Procedure Act was properly raised by preliminary objection

Holding

No - determining sub judice in this case would require ascertainment of evidence, defeating the nature of a preliminary objection

Reasoning

The court applied the Mukisa Biscuits and related authorities that a preliminary objection must be a pure point of law based only on the pleadings. Establishing that the matter in issue is directly and substantially in issue in ELCLC E008 of 2023 would require evidence and drawing inferences from matters outside the pleadings, which is impermissible at the preliminary objection stage.

p. 4
02

Whether the plaintiffs lack locus standi for want of evidence of proprietorship

Holding

Not upheld as a preliminary objection, being a matter requiring factual inquiry

Reasoning

The objection on proprietorship/interest would require ascertainment of facts, which the court held cannot be done on a preliminary objection. No separate finding on the merits of locus standi was made.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • A preliminary objection requiring the court to draw inferences from matters outside the pleadings is defeated

Court orders

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  1. 1.The notice of preliminary objection dated 8th May, 2024 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Constitution of KenyaArticle 40

Cases cited (9)

  • Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another versus Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Oraro verus Mbaja
    (2005) 1 KLR 141
  • Thiba Min Hydro Co. Limited versus Josphat Karu Ndwiga
    [2013] eKLR
  • In the matter of the Interim Independent Electoral Commission
    Constitutional App. No. 2 of 2011 [2011] eKLR
  • Republic versus Paul Kihara Kariuki, Attorney General & 2 Others Exparte Law Society of Kenya
    [2020] eKLR
  • Margaret Wachu Karuri versus John Waweru Ribiro
    [2021] eKLR
  • Cyrus Mucebiu Irungu versus Martha Wanjiru Irungu & Another
    [2022] eKLR
Jurisdiction invoked
Original civil jurisdiction; doctrine of sub judice under Section 6 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muntet & another v Muntet & another (Environment & Land Case E004 of 2024) [2024] KEELC 4934 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4934/eng@2024-06-24

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