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ELCOtherNot stated in judgment· [2024] KEELC 7040 (KLR)

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)

Environment and Land Court
24 October 2024
3,154 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 stayed a Mombasa land petition because the same dispute was already pending in another court.

What this practically means

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Executive summary

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The Department of Fisheries, County Government of Mombasa, the 3rd Respondent, raised a preliminary objection dated 3rd June 2024 on the ground that the entire Petition offends Section 6 of the Civil Procedure Act, being sub judice to HCCC No. E013 of 2024, Mwacheti Suleiman Sumuni & 3 Others, brought on behalf of 850 members of the Mtongwe Beach Management Unit. The Petitioners filed no response to the objection. The court (Naikuni J) framed three issues: whether the objection met the threshold of a proper preliminary objection; whether the suit was barred by the sub judice doctrine; and costs. Applying the Mukisa Biscuit test and related authorities, the court held the objection was a pure point of law. On sub judice, guided by Section 6 of the Civil Procedure Act, the Mativo J decision in the Law Society of Kenya ex parte case, and the Supreme Court's articulation of the sub judice rule in the KNCHR case, the court found the earlier civil suit involved the same suit properties and the same parties or their representatives and was pending before a competent court; the Petition was therefore barred and stayed pending determination of the earlier suit. The court also vacated Order No. 5 issued on 29th April 2024, fixed a mention for 30th November 2024, and awarded the 3rd Respondent the costs of the objection, to be borne by the Petitioners.

Key legal issues

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01

Threshold of a preliminary objection

Holding

The objection satisfied the Mukisa Biscuit threshold as a pure point of law on sub judice.

Reasoning

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'.

p. 4
02

Doctrine of res sub judice

Holding

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.

Reasoning

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.

p. 6
03

Costs of the preliminary objection

Holding

The 3rd Respondent, as successful party, is awarded the costs of the objection.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary objection dated 3rd June, 2024 be and is hereby found to be meritorious thus allowed in its entirety
  2. 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. 3.This Honourable Court do hereby issues an order vacating Order No. 5 issued on 29th April, 2024
  4. 4.The matter to be mentioned on 30th November, 2024 for attaining progress report and further directions by the Honourable Court
  5. 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

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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, "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.