Gitau v Alhaajar Investment Limited & 2 others (Environment and Land Petition E002 of 2024) [2026] KEELC 3235 (KLR)
The bottom line
#The Thika court refused to strike out a land petition but paused it until a related Kiambu case over the same property is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection raised by the 1st Respondent satisfies the legal threshold of a true Preliminary Objection as understood and settled in law
- 2.Whether the Petition offends the rule against sub judice as codified under Section 6 of the Civil Procedure Act, Cap. 21, by reason of the pendency of Kiambu High Court HCCOM No. 8 of 2020
Key legal issues
#Whether the objection is a true preliminary objection on a pure point of law
An objection grounded on sub judice can be a pure point of law, but only where the court can compare pleadings at face value without ascertaining disputed facts; here the 1st Respondent relied on an Amended Plaint from a collateral proceeding, blurring the objection with factual material.
The court reiterated the Mukisa Biscuit and Oraro tests: a preliminary objection must be a point of law arguable on the assumption that all pleaded facts are correct, and must not be blurred with factual details requiring proof through evidence. Since the 1st Respondent annexed an Amended Plaint from HCCOM No. 8 of 2020 to establish identity of issues, parties and prayers, the objection rests partly on a factual foundation liable to be contested. However, the court noted that sub judice objections may qualify as pure points of law where comparison of pleadings alone suffices.
Whether the Petition offends the sub judice rule under Section 6 of the Civil Procedure Act
The risk of conflicting outcomes over the same property between courts of concurrent jurisdiction is real, so the sub judice concern has genuine merit; the Petition is stayed pending determination of the earlier Kiambu suit rather than struck out.
The court accepted the Petitioner's predominant purpose distinction: the Kiambu suit is a commercial dispute over a charge, statutory notices and accounts, while the Petition raises a constitutional question under Article 65(1) on the 1st Respondent's capacity to hold freehold land. Yet the court could not ignore that a declaration in Kiambu that the sale was null and void would render the Petition otiose, and concurrent adjudication risks contradictory outcomes. The Supreme Court's guidance in KNCHR prescribes a stay of the later suit as the proper remedy.
Whether the Petition is an abuse of process brought in bad faith, frivolous and vexatious
Parallel proceedings do not automatically constitute abuse of process, and bad faith is a factual conclusion not properly made at the preliminary stage.
The court held that the mere institution of parallel proceedings does not render them abusive, especially where the party genuinely believes a constitutional dimension exists that cannot be fully canvassed in a commercial court. Characterising the petition as bad faith litigation requires a factual foundation beyond the existence of parallel suits and should not be made lightly at the interlocutory stage. The relief of striking out with costs on that ground was declined.
Legal principles established
#- When two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the later-filed matter ought to be stayed to await determination of the earlier suit.
- The proper remedy under Section 6 of the Civil Procedure Act where the sub judice rule applies is a stay, not striking out, unless the petition discloses nothing beyond what is ventilated in the earlier suit.
- A preliminary objection resting on a comparison of disputed facts, particularly claimed identity of subject matter and reliefs, cannot be disposed of at the interlocutory stage.
Court orders
#- 1.The Preliminary Objection succeeds only in part
- 2.The Court declines to strike out the Petition
- 3.The Petition is stayed pending the final determination of Kiambu High Court HCCOM No. 8 of 2020
- 4.Should the Kiambu suit conclude without resolving the constitutional question of the 1st Respondent's capacity to hold freehold title under Article 65(1), the Petitioner shall be at liberty to prosecute this Petition to its conclusion
- 5.Relief of striking out with costs on the ground of bad faith, frivolousness and vexatiousness is declined
- 6.Costs of the Preliminary Objection shall be in the cause
- 7.Mention to confirm progress on 24/09/2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act; Articles 22, 65(1) and 165(3)(b) invoked for the constitutional challenge
Relief refused
#Striking out of the Petition with costs
The constitutional question under Article 65(1) deserves a proper hearing on the merits and cannot be disposed of summarily as an abuse of process at this stage; bad faith is a factual conclusion not properly made at this interlocutory stage
Costs
Costs of the Preliminary Objection shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Preliminary Objection accordingly succeeds only in part. The Court declines to strike out the Petition, but orders that it be stayed pending the final determination of Kiambu High Court HCCOM No. 8 of 2020.
Costs of the Preliminary Objection shall be in the cause.
The correct remedy under Section 6, as the Supreme Court acknowledged in the Kenya National Commission on Human Rights (supra) case, is not necessarily to strike out the subsequent proceedings, but rather to stay them pending determination of the earlier suit.
The former asks; was the transaction procedurally proper? The latter asks; was the transaction Constitutionally permissible?
when two or more cases are filed between the same parties on the same subject matter before Courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit
Issues in the judgment
#The judgment inconsistently cites the same Supreme Court authority with two different citations and the ruling is dated 25 May 2026 while the preliminary objection was dated 25/02/2025 and the court cites a 2025 authority as settling law; the sequence is internally consistent but the double citation of KNCHR ([2020] eKLR and [2020] KESC 54 (KLR)) for the same passage may cause retrieval issues.
Recurring typographical errors ('ofiends', 'confiicting', 'difierent', 'suficient') appear throughout the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau v Alhaajar Investment Limited & 2 others (Environment and Land Petition E002 of 2024) [2026] KEELC 3235 (KLR)", Case Analysis (2026). Petition (Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3235/eng@2026-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.