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ELCStruck OutNot stated in judgment· [2024] KEELC 6821 (KLR)

Munguu v Nyogesa (Environment & Land Case E015 of 2023) [2024] KEELC 6821 (KLR)

Environment and Land Court
17 October 2024
1,997 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Bungoma struck out a land suit because the same land dispute was already pending before the Court of Appeal.

What this practically means

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Executive summary

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The Defendant/Respondent raised a preliminary objection dated 4th June 2024 seeking to strike out the Plaintiff/Applicant's suit and Notice of Motion dated 22nd May 2024 on two grounds: that the suit was sub judice Kisumu Civil Appeal No. 49 of 2018, in which stay/status quo orders were in place pending constitution of a bench to hear an application for setting aside judgment; and that the suit was fatally defective in view of Bungoma High Court Case No. 43 of 2001 and the same appeal. The Defendant, through A. Kituyi & Company Advocates, relied on Sections 6 and 7 of the Civil Procedure Act and Order 4 Rule 1(f) of the Civil Procedure Rules, contending the same subject matter, land parcel W.Bukusu/N.Mateka/77, was litigated in the High Court and was pending before the Court of Appeal with status quo orders registered by the Land Registrar on 25th April 2024. The Plaintiff/Applicant, through Akhaabi & Co. Advocates, opposed, arguing the Court of Appeal judgment in his favour remained valid and unreversed; that the earlier suit concerned fraud while this suit sought eviction, vacant possession and mesne profits; and that the objection mixed fact with law. The court applied the Mukisa Biscuits definition of a preliminary objection and Section 6 of the Civil Procedure Act, holding that the suit land was the subject of the pending appeal, that issuing the orders sought would create parallel orders and interfere with the substratum of the appellate proceedings, and that it therefore lacked jurisdiction and had to down its tools. The preliminary objection was allowed, the suit was struck out with costs, and the costs of the application were borne by the Plaintiff/Applicant.

Key legal issues

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01

Whether the suit is sub judice under Section 6 of the Civil Procedure Act

Holding

The suit is sub judice Kisumu Civil Appeal No. 49 of 2018, in which the same parties litigate over the same land parcel and a review application with status quo orders is pending

Reasoning

The court traced the litigation history: the suit land, parcel W.Bukusu/N.Mateka/77, is the subject of Kisumu Civil Appeal No. 49 of 2018, where the Defendant/Respondent's application dated 7th September 2023 for review, setting aside and rehearing is pending before a reconstituted bench, with consent orders of status quo registered by the Land Registrar. Allowing eviction and injunction orders in this suit would create parallel orders and interfere with the appellate court's substratum, which the law forbids.

p. 4
02

Whether the preliminary objection raises a pure point of law

Holding

The objection, founded on Section 6 of the Civil Procedure Act, is a pure point of law and is merited

Reasoning

Applying the Mukisa Biscuits definition, a proper preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct. The Defendant's objection rested on the existence of the pending Court of Appeal proceedings and the statutory bar in Section 6, requiring no ascertainment of disputed facts and no exercise of judicial discretion, and the court so upheld it.

p. 4

Legal principles established

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  • Sub judice bars a court from trying a matter pending before another court of competent jurisdiction between the same parties over the same subject matter
  • A court cannot issue orders contrary to those issued by a superior court in a pending appeal over the same subject matter
  • Where a suit is sub judice the court lacks jurisdiction and must down its tools

Court orders

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  1. 1.The preliminary objection dated 4th June 2024 is allowed
  2. 2.The suit before this court is struck out for being sub judice Kisumu Civil Appeal No. 49 of 2018
  3. 3.The costs of the suit and of the application are awarded to the Defendant/Respondent against the Plaintiff/Applicant

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 4 Rule 1(f)

Cases cited (10)

  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others
    [2015] eKLR
  • Mburu v Kibara & 2 others
    (Environment & Land Case 237 of 2021) [2022] KEELC 3226 (KLR)
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2021] eKLR
  • ANN v RMK
    [2021] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • Ess Pee Investment v Deegisat Services Limited
    [2022] eKLR
  • Kazungu Mramba & 45 others v St. Elizabeth Academy-Karen Limited & 2 others
    [2022] eKLR
  • Cyrus Mucebiu Irungu vs. Martha Wanjiru Irungu & another
    [2022] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd –VS- West End Distributors Ltd.
    [1969] E.A. 696
  • Attorney General & Another – Versus - Andrew Mwaura Githinji & another
    [2016] eKLR
Jurisdiction invoked
Sections 6 and 7 of the Civil Procedure Act; inherent jurisdiction of the Environment and Land Court on a 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, "Munguu v Nyogesa (Environment & Land Case E015 of 2023) [2024] KEELC 6821 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6821/eng@2024-10-17

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