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ELCDismissedNot stated in the judgment· [2025] KEELC 4337 (KLR)

Cherwon v County Government of Uasin Gishu (Environment & Land Case E012 of 2023) [2025] KEELC 4337 (KLR)

Environment and Land Court
21 May 2025
CYC. K. Yano
1,758 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 Eldoret dismissed a defendant's attempt to strike out a land suit as sub judice, because the objection relied on disputed facts.

What this practically means

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Executive summary

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The Defendant raised a Notice of Preliminary Objection dated 10th November 2023 contending that the Plaintiff's suit over Eldoret Municipality/Block 8/350 was sub judice, being directly and substantially in issue in Eldoret ELC No. 64 of 2016 (formerly Eldoret HCC No. 71 of 2006), Hosea Ruto v Eldoret Municipal Council, and Eldoret ELC Judicial Review No. 2 of 2019, both pending before the same court. The Defendant urged that the suit was bad in law, an abuse of process, and should be struck out with costs, or alternatively stayed. The Plaintiff responded that the objection failed the Mukhisa Biscuit threshold because it required probing of contested facts: she was not a party to the earlier suit, and its subject matter comprised Blocks 8/715, 8/716, 8/717 and 8/718, not Block 8/350. The court, C. K. Yano, ELC Judge, framed three issues: whether the objection met the threshold of a preliminary objection, whether it was merited, and costs. Relying on Mukhisa Biscuit, Aviation & Allied Workers Union, Oraro v Mbaja and Margaret Wachu Karuri, the court held that the objection was marred by contested factual issues and that determining sub judice would require calling for the two files and interrogating pleadings, engaging factual ascertainment and judicial discretion. Sub judice, therefore, could not be determined by way of preliminary objection. The objection was overruled and dismissed with costs to the Plaintiff, costs following the event.

Key legal issues

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01

Whether the preliminary objection met the Mukhisa Biscuit threshold of a pure point of law

Holding

It did not; the grounds required probing of evidence and ascertainment of facts concerning parties and subject matter

Reasoning

The plaintiff disputed being a party to the earlier suit and disputed that the suit land Block 8/350 was the subject of the earlier litigation, which concerned Blocks 8/715 to 8/718. To resolve the sub judice claim the court would have to call for the two files, examine pleadings and interrogate whether parties, subject matter and issues are similar, engaging judicial discretion. Contested facts disqualify a preliminary objection.

p. 3
02

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

Holding

The question cannot be resolved on a preliminary objection because the elements of section 6 require factual ascertainment

Reasoning

Section 6 bars trial of a suit where the matter directly and substantially in issue is pending in a previously instituted suit between the same parties or parties claiming under the same title. Whether the plaintiff is a party to or claims under the parties in the earlier suits, and whether the same subject matter is in issue, are contested factual questions that cannot be determined on assumed facts.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • An issue of sub judice under section 6 of the Civil Procedure Act cannot be determined by way of preliminary objection where facts must be ascertained

Court orders

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  1. 1.The Notice of Preliminary Objection dated 10th November, 2023 is not merited and is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 6

Cases cited (5)

  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    1969 E.A. 696
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others
  • Aviation & Allied Workers Union v Kenya Airways Ltd & 3 Others
    Application No. 50 of 2014 [2015] eKLR
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Margaret Wachu Karuri v John Waweru Ribiro
    [2021] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; ruling on a preliminary objection under section 6 of the Civil Procedure Act

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, "Cherwon v County Government of Uasin Gishu (Environment & Land Case E012 of 2023) [2025] KEELC 4337 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4337/eng@2025-05-21

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