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ELCDismissedELC Mombasa (suit number not stated in the excerpt)· [2025] KEELC 6949 (KLR)

Rassam & 4 others v Kazungu & 6 others (Environment and Land Case 31 of 2021) [2025] KEELC 6949 (KLR)

Environment and Land Court
15 October 2025
1,326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st to 3rd defendants filed a notice of preliminary objection dated 8th July 2021 contending that the plaintiffs' suit before the Environment and Land Court was sub judice, being substantially similar to two previously instituted matters - Mombasa High Court Constitutional Petition No. 52 of 2012 and High Court Civil Suit No. 42 of 2012 - contrary to section 6 of the Civil Procedure Act, and that the suit was therefore fatally defective, misconceived and vexatious. The 4th and 5th defendants did not participate in the hearing of the objection. The court framed two issues: whether the suit was sub judice, and costs. Relying on section 6 of the Civil Procedure Act and the Supreme Court's statement of the elements of sub judice in Kenya National Commission on Human Rights v Attorney General, the court held that one of the conditions is that both suits be pending before courts of competent jurisdiction. Applying Articles 162(2)(b) and 165(5)(b) of the Constitution and section 13(2) of the Environment and Land Court Act, the court found that disputes over the environment and the use, occupation of, and title to land fall exclusively within the ELC and cannot be heard by the High Court. Both pending High Court matters concerned ownership of the suit property; their pendency before a court without jurisdiction could not render the present suit sub judice, though the position would differ had they been transferred to the ELC. The court found the objection without merit, rejected it, and ordered the 1st to 3rd defendants to pay the plaintiffs' costs under section 27 of the Civil Procedure Act. The suit proceeds to full hearing.

Key legal issues

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01

Whether the suit is sub judice by virtue of High Court Constitutional Petition No. 52 of 2012 and High Court Civil Suit No. 42 of 2012

Holding

The preliminary objection fails because both cited matters are land disputes pending before the High Court, which lacks jurisdiction over environment and land matters; section 6 requires pendency before a court with jurisdiction to grant the relief claimed

Reasoning

The court traced the sub judice doctrine to section 6 of the Civil Procedure Act and the Supreme Court's articulation of its elements, including that both suits must be before courts of competent jurisdiction. Since post-30th August 2012 land title and occupation disputes fall exclusively within the ELC under Articles 162(2)(b) and 165(5)(b) and section 13(2) of the ELC Act, the High Court matters are not competent parallel suits. The objection would only have succeeded had those matters been transferred to the ELC.

p. 3
02

Costs of the preliminary objection

Holding

Costs follow the event under section 27 of the Civil Procedure Act; the 1st to 3rd defendants must pay the plaintiffs' costs

Reasoning

The plaintiffs successfully defended the objection and no good reason was shown to depart from the normal rule on costs.

p. 4

Legal principles established

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  • A suit pending before a court without jurisdiction over the subject matter cannot render a later suit before the competent court sub judice under section 6 of the Civil Procedure Act
  • Disputes relating to the environment and the use, occupation of, and title to land are the exclusive preserve of the Environment and Land Court and cannot be heard and determined by the High Court

Court orders

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  1. 1.The notice of preliminary objection dated 8th July 2021 is rejected.
  2. 2.The 1st to 3rd defendants to bear the plaintiffs' costs.

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 27
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 165(5)(b)
  • Environment and Land Court Act No. 19 of 2011section 13(2)

Cases cited (1)

  • Kenya National Commission on Human Rights versus Attorney General; Independent Electoral & Boundaries Commission & 16 Others
    (2002) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and the Environment and Land Court Act No. 19 of 2011

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, "Rassam & 4 others v Kazungu & 6 others (Environment and Land Case 31 of 2021) [2025] KEELC 6949 (KLR)", Case Analysis (2025). ELC Mombasa (suit number not stated in the excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6949/eng@2025-10-15

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