Sibabu Ali Mwamjibu v Valerine Achieng Opondo

3. The Defendant entered appearance and filed her Defence and Counterclaim dated 24th April 2025. In the counterclaim, the Defendant sought the following reliefs: a) A Declaration that the Plaintiff to Counterclaim is the legal registered sole proprietor of Kwale/Ukunda/5414. b) A Declaration that the transfer dated 2nd May 2017 is legal: c) A Declaration that the transfer dated 24th August 2021 and 14th August 2023 are null and void; d) An Order of permanent injunction be issued restraining the Defendant to Counterclaim by himself, his, agents, servants and or employees from interfering in any way with the parcel of land title number Kwale/Ukunda/5414; e) Costs of this suit; f) Interests; and g) Any other Order this Honourable Court deems fit. 4. The Defendant filed the notice of preliminary objection dated 13 th March 2026 premised on the following grounds: i. That the Environment and Land Court has no jurisdiction to determine division of matrimonial property which forms the subject of the suit herein. ii. That the suit is sub judice thus an abuse of the court process hence should be struck out on grounds that the Plaintiff filed a similar matter being KWALE ELC NO. 23 OF 2024-SIBABU ALI 2|Page ELCLC E031 OF 2025

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MWAMJIBU -VERSUS- VALERINE ACHIENG OPONDO & THE LAND REGISTRAR. iii. That the suit raises no reasonable cause of action against the Defendant. 5. With the consensus of the parties, the Court directed that the preliminary objection be canvassed by way of submissions. Submissions 6. The Defendant submitted that this Court lacked jurisdiction to entertain the matter asserting that the action is matrimonial property. It is submitted that the Plaintiff’s issue was not that of ownership but division of matrimonial property. That the Plaintiff’s claim was for a share of 50% of the contribution based on the alleged cohabitation with the Defendant. 7. The Defendant further submitted that the suit was sub judice by virtue of the existence of the CMELC No. E023 OF 2024 between the parties over the subject suit property. It was argued that the Plaintiff herein, who is also the Plaintiff in the other suit, sought substantially similar reliefs in both suits, including a declaration he is the bona fide owner of the suit property, cancellation of the Defendant’s title, joint registration of the Plaintiff and Defendant as proprietors thereof, and general damages of trespass amongst other reliefs. 8. The Defendant submitted that during the pendency of this suit, the lower court file was dismissed on 31st March 2026 for want of prosecution and as such the 3|Page ELCLC E031 OF 2025

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suit was res judicata. They urged that proceeding with the matter would amount to aiding an illegality and entertaining the Plaintiff’s forum shopping. 9. On the other hand, the Plaintiff submitted that the suit was not a claim for matrimonial property as the parties were never married. It was further submitted that the Plaintiff is a Muslim and that under the Islamic Law, there is no presumption of marriage. It was their submissions that neither party had pleaded that the property constituted their matrimonial home, nor was there any consensus that the parties had held themselves out as husband and wife. 10.It was further submitted that the Plaintiff’s claim to the suit property is based on the assertion that the property was purchased jointly but registered in the Defendant’s name. The Plaintiff maintained that thereafter, he was registered as a joint proprietor with the Defendant but his name was later fraudulently removed from the title. The Defendant submitted that the issues raised in the pleadings fell within the jurisdiction of this Court, particularly the allegations of fraud and presentation of forged documents for registration, which, it was submitted, are matters within the purview of the Environment and Land Court. It was further submitted that the reliefs sought in the Defendant’s counterclaim equally fall within the jurisdiction of the Court. 11.On the issue of sub judice, the Plaintiff submitted that the suit before the lower court was instituted after the filing of the present suit and was subsequently withdrawn. Issues for determination 4|Page ELCLC E031 OF 2025

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12.I have carefully read and considered the Defendant’s Preliminary Objection dated 13th March 2026, the submissions on record, and the relevant legal provisions. 13.The Court discerns the following two issues for determination: i) Whether this Court has jurisdiction to determine this suit. ii) Whether the suit is sub judice. Analysis and Determination Whether this Court has jurisdiction to determine this suit. 14.The principles governing the threshold for preliminary objection was set out in the locus classicus case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696.The Court held thus: “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 submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … 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.” 5|Page ELCLC E031 OF 2025

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15. In Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR, the Supreme Court in determining a preliminary objection held that: “Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 16.In the case of Quick Enterprises Ltd. Vs. Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999, the Court held that: “When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.” 17.In Oraro v Mbaja [2005] 1 KLR 141, the Court held that: “Anything that purports to be a preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence.” 18. The Defendant’s first ground of objection is that this Court lacks jurisdiction to determine the suit on the basis that the dispute relates to the division of matrimonial property. A challenge to the jurisdiction of the Court raises a pure point of law which must be determined at the earliest opportunity. Where the Court finds that it lacks jurisdiction, it must down its tools. The issue of 6|Page ELCLC E031 OF 2025

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jurisdiction must therefore be resolved before the Court considers the other issues arising in the suit. 19. It is trite that jurisdiction is everything and, without it, a court has no power to take any further step in a matter. This was stated in the classic case of The Owners of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd (1989) KLR where Nyarangi J.A. held as follows: “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 20.The Supreme Court in the case of Samuel Kamau Macharia & Another –vsKenya Commercial Bank Limited & 2 others (2012) KESC 8 (KLR) (23 rd October 2012) (Ruling) rendered as follows: “….. a Court can only exercise jurisdiction that has been donated to it by either the constitution or legislation or both. Therefore, it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 7|Page ELCLC E031 OF 2025

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21.The jurisdiction of this Court is derived from under Article 162(2) of the Constitution of Kenya and Section 13 of Environment and Land Court Act No.19 of 2011. Article 162(2)(b) establishes the Environment and Land Court with the jurisdiction to hear and determine disputed relating to the environment and the use and occupation of, and title to, land. Section 13 of the Act provides that this Court has power to hear and determine all disputes relating to land and environment. 22.The Defendant’s first ground of objection is that this Court lacks jurisdiction on the ground that the dispute concerns matrimonial property. The issue for determination, at this preliminary juncture, is therefore whether from the pleadings and the undisputed facts on record, the dispute falls within the ambit of the Matrimonial Property Act. 23.Section 6 of the Matrimonial Property Act describes matrimonial property as follows: (1) For the purposes of this Act, matrimonial property means— (a)the matrimonial home or homes; (b)household goods and effects in the matrimonial home or homes; or (c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. 24.Section 2 of the Act describes matrimonial home as “any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property”. The application of the Matrimonial Property Act therefore presupposes, among other things, the existence of a marriage. 8|Page ELCLC E031 OF 2025

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25.The Plaintiff pleads that the suit property was jointly purchased and registered initially in the name of the Defendant. He asserts that thereafter the suit property was registered in the names of the parties herein, and that he contributed towards its development. He, however, expressly denies that the parties were married. The Defendant, while acknowledging that the parties were in an intimate relationship, has not pleaded in her Defence and Counterclaim that the parties were married or that the suit property constituted matrimonial property. The assertion that the property is matrimonial property was raised, for the first time, in the Preliminary Objection. 26.From the pleadings, the plaint, defence and the counterclaim, the existence of a marriage between the parties is not an issue for determination. In any event, whether the parties were married and whether the suit property constitutes matrimonial property as alleged by the defendant in the preliminary objection and denied by the plaintiff are quintessentially questions of facts requiring proof by evidence. 27.As was held in Mukisa Biscuits Manufacturing Co. Ltd, supra, a preliminary objection must raise a pure point of law founded on undisputed facts. It cannot properly be raised where the determination of the objection requires the Court to ascertain disputed facts. 28.In the circumstances, the Defendant’s objection to the jurisdiction of this Court is founded on disputed facts and does not constitute a proper preliminary objection. The objection on this ground is accordingly overruled 9|Page ELCLC E031 OF 2025

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Whether this Suit is Sub Judice. 29.Section 6 of the Civil Procedure Act provides that: “No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.” 30.In Muchiri t/a Fancy Auctioneers & another v Thungutha & another [2025] KEELC 4839 (KLR) the Court, while considering whether an objection founded on the doctrine of sub judice could properly be raised by way of a Preliminary Objection held thus: “35. I find that in order to determine whether the rule of sub judice has been offended, the Court has to delve into material facts of the case pending in the High Court, call for pleadings, examine and/or interrogate them to help it determine if the facts in issue are similar. This necessarily puts the matter outside the ambit of a Preliminary Objection.” 31.Similarly in Margaret Wachu Karuri –vs- John Waweru Ribiro (2021) eKLR, the Court held as follows: “For the Court to determine whether the issues herein were directly and substantially in issue with the other suit, it is this Court’s considered view that it will have to ascertain facts and probe evidence by ascertaining whether the issues raised in the instant suit are the same as the ones in the Appeal aforesaid and further interrogate the prayers sought whether they 10 | P a g e ELCLC E031 OF 2025

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are the same and relate to the same issues. On whether or not the same is sub-judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this Court holds and finds what has been raised by defendant/objector does not amount to a preliminary objection, and thus the preliminary objection is not merited.” 32.I fully associate myself with the aforementioned decisions. For this Court to determine whether the suit is sub judice, the Court would have to examine the pleadings and material relating KWALE CMELC NO. 23 OF 2024 to ascertain whether the matters in issue are directly and substantially the same, whether the suits concern the same title and involve the same parties, the reliefs sought therein, and the status and date of institution of the aforementioned suit. These are matters of fact which cannot be properly determined without the Court examining and evaluating the evidence. 33.Additionally, the circumstances surrounding the filing and subsequent withdrawal of the other suit are disputed. The Plaintiff contends that the other suit was instituted after this suit and was subsequently withdrawn. The Court finds that material before it is insufficient to enable it to conclusively determine the objection on the ground of sub judice. The objection therefore fails. 34.The upshot of the foregoing is that the Court finds that the Defendant’s Preliminary Objection unmerited and is accordingly dismissed with costs. Dated, Signed and Delivered virtually via Microsoft teams at Kwale this 25th day of September 2026. Hon. E.G Nderitu L J 11 | P a g e ELCLC E031 OF 2025

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ELC Kwale In the presence of: Dr Chitembwe Advocate for the Plaintiff Ms Obat Advocate for the Defendant Ms Halima C/A 12 | P a g e ELCLC E031 OF 2025

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