Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (the 3rd Respondent's Notice of Preliminary Objection dated 13th May, 2024)· [2025] KEELC 141 (KLR)

Whitehorse Investments Limited v Attorney General & 5 others (Environment & Land Petition 16 of 2020) [2025] KEELC 141 (KLR)

Environment and Land Court
23 January 2025
2,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed an attempt to strike out a land dispute as a duplicate case because the objector failed to provide the earlier case's pleadings.

What this practically means

#

Executive summary

#
This judgment of the Environment and Land Court at Nairobi (O. A. Angote, Judge), delivered virtually on 23rd January 2025, determines a Notice of Preliminary Objection dated 13th May 2024 raised by the 3rd Respondent against the Petitioner's petition. The objection was that the Court was divested of jurisdiction under Section 6 of the Civil Procedure Act because the Petitioner's claim over Enforcement Notice No. 6208 issued on 14th December 2017 by the Nairobi City County was directly and substantially in issue in the pending Nairobi ELC Constitutional Petition No. 133 of 2017 (Whitehorse Investments Limited v Nairobi City County & Anor), rendering the present proceedings an abuse of court process. The objection was canvassed by written submissions; the 3rd Respondent relied on the Mukisa Biscuits test and the KNCHR formulation of the res sub judice elements, while the Attorney General supported the objection and the Petitioner filed no submissions. The court framed two issues: whether the objection was competent, and whether it was merited. It held that sub judice goes to jurisdiction and is a pure point of law, hence a proper preliminary objection. However, on the merits, neither party annexed the pleadings in Petition 133 of 2017, and the court's own attempt to access the file failed, leaving it unable to compare the subject matter of the two suits. The objection was found unmerited and dismissed with costs.

Key legal issues

#
01

Whether an objection based on sub judice (Section 6 of the Civil Procedure Act) is a competent preliminary objection

Holding

Yes - sub judice goes to jurisdiction and is a pure point of law, so it is properly raised as a preliminary objection

Reasoning

The court applied the Mukisa Biscuits and Oraro v Mbaja tests, under which a preliminary objection must be a pure point of law not dependent on ascertaining facts. It relied on John Florence Maritime Services, which held that res judicata (a related doctrine) can be raised by preliminary objection. It found sub judice, being codified in Section 6 and jurisdictional in nature, passes the test of competence.

p. 4
02

Whether the Petition is sub judice Nairobi ELC Petition No. 133 of 2017

Holding

Not determined - the objection failed because the pleadings in Petition 133 of 2017 were not placed before the Court

Reasoning

Applying the KNCHR test, the objector had to establish more than one suit over the same subject matter, earlier institution, pendency before competent courts, and same parties. Although the Amended Petition conceded prior litigation including Petition 133 of 2017, neither party annexed the pleadings of that Petition to enable comparison of subject matter. Even the Court's own efforts to access the file were futile, so the objection could not be upheld.

p. 4

Legal principles established

#
  • The doctrine of sub judice under Section 6 of the Civil Procedure Act goes to the jurisdiction of a court and constitutes a pure point of law, capable of being raised as a preliminary objection.
  • The party invoking the res sub judice doctrine bears the burden of establishing its elements, including proving the previously instituted suit's parameters; without the pleadings of the earlier suit the court cannot determine whether the rule is contravened.

Court orders

#
  1. 1.The 3rd Respondent's Notice of Preliminary Objection dated 13th May, 2024 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioner

Authorities

#

Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 27

Cases cited (13)

  • Owners of Motor vessel vs Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Kenya National Commission on Human Rights vs Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties)
    [2020] eKLR
  • Kenya Bankers Association vs Kenya Revenue Authority
    [2019] eKLR
  • David Ndii & Others vs Attorney General & Others
    [2021] eKLR
  • Nyanjui & Another (Suing on their own behalf and as legal representatives of Arthur Nyanjui Gichui) vs Gitau
    [2022] KECA 1382 KLR
  • Kay Construction Limited vs ECO Bank Kenya Ltd & 60 Others
    [2015] eKLR
  • Rosaline Njeri Macharia vs Daima Bank Limited
    [2012] eKLR
  • Party of Independent Candidate of Kenya & Another vs Mutula Kilonzo & 2 Others
    [2013] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd. vs West End Distributors
    (1969) EA 696
  • Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others
    [2014] eKLR
  • Oraro vs Mbaja
    [2005] eKLR
  • John Florence Maritime Services Limited & Conken Cargo Forwarders Limited vs Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Office De Gestion Du Freit Maritime (OGEFREM)
  • Whitehorse Investments Limited vs Nairobi City County & Anor
    Nairobi HC ELC Constitutional Petition No. 133 of 2017
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court; the objection was grounded on Section 6 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Whitehorse Investments Limited v Attorney General & 5 others (Environment & Land Petition 16 of 2020) [2025] KEELC 141 (KLR)", Case Analysis (2025). Not stated in judgment (the 3rd Respondent's Notice of Preliminary Objection dated 13th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/141/eng@2025-01-23

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