Kiarie v Ole Toiyanka & 2 others (Environment and Land Case E006 of 2025) [2026] KEELC 2201 (KLR)

Directions 4. The court directed that the preliminary objection be canvassed by way of written submissions. The parties duly complied and the said submissions have been duly considered in the writing of this ruling. Analysis and Determination 5. The singular issue for determination before this Court is whether the Preliminary Objection dated 17th July 2025 is merited. 6. It is imperative to first appreciate the jurisprudential scope of a "Preliminary Objection." The locus classicus on this subject is the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696, where Law, J.A. famously stated: “ So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a former recovery.” Sir Charles Newbold, P. in the same judgment added that: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 7. This position was afirmed in Oraro vs Mbaja (2005) eKLR, where the Court emphasized that a preliminary objection must stem from a pure point of law. More recently, in Odeny (Formerly Victor Onyango Odeny) v Attorney General [2024] KEHC 5627 (KLR), Mugambi J succinctly characterized the essential elements of a preliminary objection as follows: “ ...the essential characteristics of a preliminary objection can be succinctly stated as follows: i. It must be on a pure point of law, not factual matters. ii. It is argued on assumption that all facts pleaded by the party against whom that objection is targeted are correct. iii. If any fact has to be ascertained or if what is sought in the objection is an exercise of judicial discretion, it cannot be raised. iv. If successful, it must be capable of disposing the suit without the need of proceeding to full trial.” 8. The Defendant’s objection is grounded on the doctrine of Res Sub Judice. This doctrine is codified in Section 6 of the Civil Procedure Act (Cap 21), which bars a court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. “ Section 6. Stay of suit "No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2201/eng@2026-02-05 2

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Explanation.—The pendency of a suit in a foreign court does not preclude the courts in Kenya from trying a suit founded on the same cause of action."” 9. The Supreme Court of Kenya, in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (2020) eKLR, pronounced itself on the principle of sub judice as follows: “ (67) The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing confiicting decisions over the same subject matter. This means that 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. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 10. Applying these principles to the instant application, the Defendant asserts that there is a prior suit, Kajiado ELC E025 of 2024, involving the same parties and property. However, for this Court to make a finding on Res Sub Judice, it must conduct a comparative analysis of the pleadings in the present suit against the pleadings in the alleged former suit. 11. This exercise inherently requires the ascertainment of facts. The Court must verify the parties, the subject matter, and the issues raised in the previous suit. This removes the objection from the realm of a "pure point of law" as envisaged in Mukisa Biscuit case. A Preliminary Objection cannot be sustained if the Court has to look outside the pleadings of the current suit to ascertain the existence and content of another suit. 12. This position is guided by the holding in Wensley Barasa vs Immaculate Awino Abongo & another (2020) eKLR where, faced with a similar situation, the Court held: “ A party pleading res – judicata or sub – judice is enjoined to place before the Court any evidence of previous litigation involving the same parties and subject matter.” 13. Consequently, since the determination of this issue requires the production of evidence; namely, the production of the pleadings in ELC E025 of 2024, it cannot be summarily determined as a Preliminary Objection. 14. I wish to clarify for the Defendant’s benefit that the relief sought in the Notice of Preliminary Objection was erroneous. The Defendant sought to have the suit dismissed. However, Section 6 of the Civil Procedure Act does not fashion a dismissal of the suit, but rather a stay of proceedings pending the determination of the earlier suit. 15. In the upshot, the Preliminary Objection dated 17th July 2025 is found to be incompetent for the reasons expounded above. Consequently, the Preliminary Objection dated 17th July 2025 is hereby dismissed with costs to the plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2201/eng@2026-02-05 3

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It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 5TH DAY OF FEBRUARY 2026. M.D. MWANGI JUDGE In the virtual presence of: Mr. Githuka alongside M/S. Karanja for the plaintifi Mr. Karanja for the defendant M/S. Ochola holding brief for M/S. Mong’are for the interested parties Court Assistant- Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2201/eng@2026-02-05 4

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