Mwanthi (Suing on Behalf of themselves and on Behalf of themselves and on Behalf of the 850 Members of the Mtongwe Beach Management Unit Members) v Kenya Ports Authority & 3 others (Environment & Land Petition E011 of 2024) [2024] KEELC 7040 (KLR)
The bottom line
#Kenya's Environment and Land Court stayed a Mombasa land petition because the same dispute was already pending in another court.
What this practically means
#Executive summary
#Key legal issues
#Threshold of a preliminary objection
The objection satisfied the Mukisa Biscuit threshold as a pure point of law on sub judice.
The court restated the classic definition: a preliminary objection raises a pure point of law argued 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 is sought. The court found the objection, grounded on Section 6 of the Civil Procedure Act regarding the pending HCCC No. E013 of 2024, fit this description 'on all fours'.
Doctrine of res sub judice
The Petition is barred by Section 6 of the Civil Procedure Act because it is directly and substantially in issue in the previously instituted HCCC No. E013 of 2024 between the same parties over the same suit properties.
Applying Section 6 of the Civil Procedure Act and the Supreme Court's statement of the sub judice rule, the court found the earlier suit involves the same suit properties and the same members of the self-help group, and is pending before a competent court. The court accordingly lacks authority to hear and determine the Petition and stayed it pending determination of the earlier suit.
Costs of the preliminary objection
The 3rd Respondent, as successful party, is awarded the costs of the objection.
Section 27(1) of the Civil Procedure Act provides that costs follow the event. Following Jasbir Rai Singh and Cecilia Karuru Ngayo, and the principle in Hussein Muhumed Sirat that the successful party is entitled to costs absent exceptional circumstances, the court held the 3rd Respondent entitled to costs of the objection, to be borne by the Petitioners.
Legal principles established
#- A preliminary objection must be founded on a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained.
- Where a suit is sub judice before a court of competent jurisdiction between the same parties over the same subject matter, the later suit must be stayed pending determination of the earlier suit.
Court orders
#- 1.The Notice of Preliminary objection dated 3rd June, 2024 be and is hereby found to be meritorious thus allowed in its entirety
- 2.This matter is found to be sub judice hence an order be and is hereby issued staying the Petition pending the hearing and determination of HCCC NO. E013 OF 2024 Mwacheti Suleiman Sumuni & 3 Others, whereby the parties can move the Court appropriately thereafter
- 3.This Honourable Court do hereby issues an order vacating Order No. 5 issued on 29th April, 2024
- 4.The matter to be mentioned on 30th November, 2024 for attaining progress report and further directions by the Honourable Court
- 5.The 3rd Respondent shall have the costs of the Notice of Preliminary objection dated 3rd June, 2024 to be borne by the Petitioners
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Constitution of Kenya, 2010 (specific article not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanthi (Suing on Behalf of themselves and on Behalf of themselves and on Behalf of the 850 Members of the Mtongwe Beach Management Unit Members) v Kenya Ports Authority & 3 others (Environment & Land Petition E011 of 2024) [2024] KEELC 7040 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7040/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.