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ELCDismissedNot stated in judgment (Notice of Motion dated 6th October 2024)· [2025] KEELC 3111 (KLR)

Mwangi v Maina & 4 others (All Sued as Trustees (Office Holders) of Rivers of Joy Ministries) (Environment & Land Case E128 of 2024) [2025] KEELC 3111 (KLR)

Environment and Land Court
28 March 2025
1,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to pause land proceedings because a struck-out suit no longer exists in law.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court by Hon. T. Murigi, J, determined a Notice of Motion dated 6th October 2024 by the Applicants (Defendants in the suit), who sought a stay of proceedings pending the hearing and determination of ELCLA No. 037 of 2024, an appeal against a subordinate court ruling of 8th March 2024 striking out their suit in MCELC No. E342 of 2023 for want of pecuniary jurisdiction. The Respondent (Plaintiff) raised a preliminary objection contending that the application offended Section 6 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules, that the learned Magistrate had held she lacked jurisdiction, that the application was an abuse of process and an afterthought, and that no suit existed for sub judice to attach to. The court framed two issues: whether the preliminary objection was merited and whether the suit should be stayed. Applying Mukisa Biscuits and Oraro v Mbaja, the court held that the sub judice objection required proof through evidence and so was not a pure point of law, but found that the Applicants' struck-out suit had ceased to exist absent a stay of the striking-out ruling. On stay, applying Kenya Power v Wokabi and Global Tours and Travels, the court held the Applicants had not met the threshold, nor shown exceptional circumstances or a risk of conflicting decisions. Compliance with Order 43's leave requirement was left for the appellate court. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the preliminary objection dated 4th December 2024 is merited

Holding

Partially successful: the sub judice objection based on absence of a subsisting suit succeeded, but the sub judice ground required evidence and the Order 43 leave-to-appeal ground was for the appellate court

Reasoning

The court applied Mukisa Biscuits and Oraro v Mbaja: a preliminary objection must be a pure point of law. The Respondent would need to adduce evidence to prove sub judice, removing that ground from the purview of a preliminary objection. However, the court found as a fact that the Applicants' suit, having been struck out, no longer exists, so there is no suit in existence for the sub judice principle to attach to.

p. 5
02

Whether the suit should be stayed pending ELCLA No. 037 of 2024

Holding

Stay refused; the Applicants failed to establish the threshold for stay of proceedings

Reasoning

Applying Kenya Power v Wokabi and Global Tours and Travels, the court noted the Applicants must show an arguable appeal, expeditious filing and sufficient cause, and that exceptional circumstances are required. The Applicants' suit had been struck out for want of jurisdiction and ceased to exist; no stay of the striking-out ruling was demonstrated and the order had not been overturned, so the court was not persuaded that conflicting decisions would emanate from the two courts.

p. 5

Legal principles established

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  • A suit struck out for want of jurisdiction ceases to exist unless the striking-out order is stayed or overturned on appeal; without such a stay there can be no sub judice relationship with a pending appeal
  • A sub judice objection requiring ascertainment of facts is not a true preliminary objection on a point of law
  • Whether leave to appeal was properly sought is a matter for the appellate court, not the trial court

Court orders

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  1. 1.The application dated 6th October 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 75(1)(h)
  • Civil Procedure RulesOrder 43 Rule 1
  • Civil Procedure RulesOxygen principle (referred to in submissions)

Cases cited (9)

  • Kamau v Mburu
    [2022] eKLR
  • Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another
    [2022] eKLR
  • Olow v Arale & another
    [2024] eKLR
  • Kuria v Wanjohi; Chief Land Registrar
    [2024] eKLR
  • MFI Document Solutions Ltd v Parretto Printing Works Limited
    [2021] eKLR
  • Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd
    (1969) EA696
  • Oraro Vs Mbaja
    2005 eKLR
  • Kenya Power and lighting Company Limited v Esther Wanjiru Wokabi
  • Global Tours and Travels Limited: Winding up Cause No. 43 of 2000
On appeal from
Chief Magistrate's Court (MCELC No. E342 of 2023)
MCELC No. E342 of 2023
Jurisdiction invoked
Not stated in judgment; the appeal in ELCLA No. 037 of 2024 lies from the Magistrate's Court ruling of 8th March 2024 striking out the Applicants' suit for want of jurisdiction

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, "Mwangi v Maina & 4 others (All Sued as Trustees (Office Holders) of Rivers of Joy Ministries) (Environment & Land Case E128 of 2024) [2025] KEELC 3111 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 6th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3111/eng@2025-03-28

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