[2015] KEELC 645 (KLR)
The court found that the issue of whether the present suit is res sub judice could not be determined without perusing the pleadings in both the current suit and Mombasa HCCC No. 299 of 2013. Since the Mombasa file was not before the court and the necessary facts had not been established, the preliminary objection...
Source-derived case information.
- Citation
- [2015] KEELC 645 (KLR)
- Parties
- Plaintiff: Esther Nzingo Kalume; Defendant: Stephen Juma; Defendant: Bahati Kahindi Juma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 19 of 2014
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- OA Angote
- Legal Topics
- Res Sub Judice, Preliminary Objection, Pleadings, Parallel Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Nzingo Kalume
Plaintiff
Stephen Juma
Defendant
Bahati Kahindi Juma
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is res sub judice in light of the existence of Mombasa HCCC No. 299 of 2013.
- 2 Whether the preliminary objection raises pure points of law.
Ratio Decidendi
The court found that the issue of whether the present suit is res sub judice could not be determined without perusing the pleadings in both the current suit and Mombasa HCCC No. 299 of 2013. Since the Mombasa file was not before the court and the necessary facts had not been established, the preliminary objection did not raise a pure point of law. The court held that the Defendants should have filed a formal application and annexed the relevant pleadings to enable a proper determination. Consequently, the preliminary objection was dismissed as it was not properly founded in law or fact.
Court Disposition
preliminary objection dismissed
Orders
- The Notice of Preliminary Objection dated 24th July 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 19 OF 2014
ESTHER NZINGO KALUME...................................PLAINTIFF
=VERSUS=
STEPHEN JUMA.........................................1ST DEFENDANT
BAHATI KAHINDI JUMA............................2ND DEFENDANT
R U L I N G
Introduction:
What is before me is the Defendant's Preliminary Objection dated 24th July 2014. In the Preliminary Objection, the Defendant has averred that there is a similar suit pending in court being HCCC NO. 299 of 2013, Masha Birya Dena & Others where the Defendants are among the 111 Plaintiffs and the Plaintiff herein is one of the Defendants in the said suit.
In her Ground of Opposition, the Plaintiff has deponed that the Defendant's Notice of Preliminary Objection is misconceived, fatally defective and intended to delay the suit.
The parties field their respective submissions.
The Defendants' advocate submitted that a court cannot proceed with the trial of any suit where there is an existing similar suit; that this matter is res sub judice; that the res sub judice is meant to prevent a court of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue and that the Mombasa suit is a representative suit dealing with the same subject matter herein.
The Plaintiff's counsel submitted that the present case is not res sub judice the Mombasa case; that none of the parties in the current suit are parties in the Mombasa case and that in any case the preliminary objection does not consist pure points of law.
Analysis and Findings:
The Defendants' preliminary objection is premised on the ground that the present suit is similar to a suit in Mombasa.
Whether this suit is res sub judice pursuant to the provisions of Section 6 of the Civil Procedure Rules can only be ascertained after the court has perused the pleadings in both matters. The facts of Mombasa HCCC No. 299 of 2013 must be ascertained first before the court can decide on the competence of this suit.
The issues raised in the present Notice of Preliminary Objection is not a purely points of law considering that the Mombasa file is not before this Court. The Defendant should have filed a formal application and annexed the pleadings in the Mombasa case to enable this court determine if the current suit is indeed res sub judice.
For those reasons, I dismiss the Notice of Preliminary Objection dated 24th July 2014 with costs.
Dated and delivered in Malindi this 20th day of February, 2015.
O. A. Angote
Judge