https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5058

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC L CIVIL SUIT NO. E435 OF 2024** **EUNICE WAMBUI GUTHAIYA ……………..…….………. PLAINTIFF** **VERSUS** **HASSAN DIIS DEKOW ………………..…...………..….. DEFENDANT** **RULING** 1. By a preliminary objection dated 16.6.2025 the court is asked to find that: 2. This suit as subjudice due to Milimani ELC Case No. 352 of 2019. 3. The ministry of land public works housing and urban development (Regional) surveyor, Nairobi conducted a ground verification and beacon reestablishment exercise dated 13.8.2024 at the request of the DCI, Kayole Division covering specifically LR No. 15400/113 and Nairobi Block 173/146, whose findings were that Nairobi block 173 maps have not been published pending ongoing investigations and further recommended for investigation be conducted as to the process, application and preparation of the above name title which report is attached as the plaintiff’s exhibit EWG-2. In view of the competing parcels in this suit, the defendant submits that the subject matter under an active, unresolved government investigation, and therefore it will be premature, prejudicial and contrary to public interest for this court to adjudicate the competing title claims whose official investigation are ongoing. 4. Given the above grounds the court is asked by the defendant to dismiss the suit brought through the plaint dated 22.10.2024 with costs. 5. The plaintiff approached this court through a plaint dated 22.10.2024. She seeks an eviction of the respondent, his agents, representatives, nominees, servants, employees and any person claiming through him and also for an order compelling him to remove all buildings, structures, materials or other things, erected, placed and or existing in or upon LR. 15400/113 measuring 0.0282 Ha, and to immediately vacate, give vacant possession and to restore the suit property to its original status prior to the trespass. 6. The plaintiff’s contention is that she bought the suit property located at Sosian Estate, Embakasi sub county from Amboseli Court Limited at Kshs.1.2 million, upon payment of the consideration, and which it was transferred to her and she was handed to her vacant possession, only for the defendant to invade, encroach and trespass into it through his servants, agents, employees or persons claiming under him and commence construction work therein, yet he holds no superior title as a justification for the trespass. 7. The plaintiff avers that she made a report to the police whose investigation report was that she is the legal owner of the suit property making the defendant’s act illegal, oppressive, unjustifiable. She maintains that the defendant acts amounts to infringement of her constitutional rights to ownership and quiet possession of the suit property. 8. The question for the court determination is whether the defendant has raised a pure point of law. 9. A preliminary objection must be founded upon a settled and crisp point of law to the intent that its application is to undisputed facts, leading to one conclusion that the facts are incompatible with that point of law as held in Independent **Electoral and Boundaries Commission Vs Jane Cheprenger and 2 Others Civil Application No. 36 of 2014 (2015) KESC to (KLR) (15th December 2015) (Ruling).** 10. A preliminary objection cannot be sustained where the court has to ascertain contested facts, interrogate evidence or exercise its discretion as was held in **Agnes Wachu Wamae & 97 Others Vs Barclays bank of Kenya Limited, Petition No. 19 (E022) of 2020 (2021) KESC 5 (KLR).** 11. Examples of a preliminary objection as held in **Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Limited (1969) EA 696 (Court of Appeal of East Africa)** include, an objection to the jurisdiction of the court, and a plea of time limitation of a cause of action. 12. A preliminary objection therefore must be capable of disposing a suit. It must raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. See also **Paul Njogu Mungai & Others vs Kenya Airport & Others Petition No. 11 of 2019 (2021) KESC 43 (KLR), Supreme court of Kenya, Judgment delivered on 16th July 2021).** 13. The preliminary objection before this court is into limps phased. The first one is that the suit is subjudice in **Kenya National Commission on Human Rights vs Attorney General; Independent Electoral Boundaries Commission and 16 Others (interested parties) advisory opinion reference No. 1 of 2017 (2020) KESC 54 (KLR)** **(Ruling delivered on 7th February 2020)**, the court held that the purpose of subjudice rule is to stop the filing of multiplicity of suit between the same parties or those claiming under them over the same subject matter, so as to avoid abuse of the court process and to diminish the chances of courts, with competent jurisdiction from issuing conflicting decision over the subject matter. 14. The court said that when two or more cases are filed between the same parties over the same subject matter before court is of similar jurisdiction, the matter that is filed later ought to be stayed in order to await the determination in the earlier suit. 15. The court said that a party who invokes the doctrine of resubjudice must therefore establish that there is more than one pending suit over the same subject matter, that one suit was instituted before the other, that both suits are pending before court of competent jurisdiction and lastly that the suit are between the same parties or their representatives, over the same subject matter. 16. In **Republic vs Paul Kihara Kariuki, Attorney General and 2 Others exparte Law Society of Kenya Judicial Review Application No. E045 of 2020 (2020) eKLR (High court at Nairobi (ruling delivered on 8th October 2020)** the court said that instituting of a multiplicity of actions on the same subject matter against the same opponent on the same issue or multiplicity of actions over the same matter between the same parties, even where there exists a right to begin an action is a form of abuse of the court process. 17. Further in **Remmy Mwandzomari vs Rischard Hela Mukuva and 4 Others petition No. 13 of 2020 (2021) KEELC 96 (KLR) (Ruling) (14th February 2021)** the court said that suits that offend the doctrine of resubjudice rule/principle ought to be dismissed in order to prevent the abuse of the court process. 18. Applying this foregoing case law to the instance to the preliminary objection it is trite law as was stated in **George Oraro vs Barrack Eston Banja Civil No. 85 of 1992 (2005) KEHC 31 82 (KLR) (High Court at Nairobi 4th February 2005** that any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeking for probation of evidence for its authentication is not as a matter of legal principle, a true preliminary objection that the court should allow to proceed. 19. The law is that where a court needs to investigate facts, as a preliminary objection, cannot be raised at all. 20. What the defendant has termed as brought before this court preliminary objection hearing obviously derives its foundation from factual information which stands to be tested by normal rules of evidence. 1. The defendants seek to rely on pleadings in a pending suit which is not between the two parties but between other parties which are also to sustain the preliminary objection not involved in this suit. The defendant also invites the court to look at annexure marked EWG 6 to support the preliminary objection. All this grounds do not meet the litmus test of what amounts to a preliminary objection going by the cited case law above. 2. In **Hassan Joho & Another vs Suleiman Said Shahbal & 2 Others (2014) KEAC 34 KLR Petition No. 10 of 2013 (Judgment) (4th February 2014),** the court said that a preliminary objection served as a shield against profligate deployment of time and other judicial resources and secondly as a public cause of sparing scarce judicial time to be committed to only deserving cases. The court also warned against raising of a preliminary objection be used used to as a sword for winning a case otherwise meritious case destined to be resolved judicially. 3. Looking at the plaint herein and in the absence of a statement of defence the defendant lacks basis to raise a preliminary objection when he in the manner he has done before court. The defendant has not even pleaded to the claim for trespass to private land, by way of a statement of defense. The Preliminary objection is dismissed with costs. 1. Orders accordingly. **DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY, 2026** **HON. JUSTCE C.K NZILI** **JUDGE** **In the presence of:** Court Assistant: Julius Ms Maina for Plaintiff