[2019] KEELC 3381 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 338 OF 2017

FELISTER JOYCE OKAA.................PLAINTIFF

VERSUS

ZACHARIA KUYA OKATA...........DEFENDANT

RULING

The defendant raised a preliminary objection on a pure point of law that this suit should be struck out with costs for the reasons that it is sub judice Maseno PMCC No. 115 of 2014 Zacharia Kuya Okata vs. Felister Joyce Okaa that was fixed previously in the year 2014 and still pending. The plaintiff herein filed this suit by way of originating summons dated 26th September, 2017 seeking to be declared as an adverse possessor with respect to parcel of land No. West Bunyore/Ebusakami/1852. The defendant upon being served with the originating summons duly filed and served a replying affidavit where he indicated at paragraph 10 and 11 of the said affidavit that there is an existing suit in Maseno Laws Courts being Maseno PMCC No. 115 of 2014 between the same parties in a court of competent jurisdiction. Following the directions of this honourable court on 20th November, 2018, the defendant filed and served a Notice of Preliminary Objection dated 26th November, 2018 that this suit should be struck out with costs for reasons that it is sub judice to Maseno PMCC No. 115 of 2014 – Zacharia Kuya Okata vs. Felister Joyce Okaa that was filed previously in the year 2014 and still pending. Therefore, the issue of whether this matter is sub-judice is pure point of law and if decided in the affirmative, it has the potential of determining this matter with finality without the need of ascertaining any additional facts. They relied on the case of Salome Wambui Njau (suing as an Administratix of the Estate of Peter Kiguru Njuguna (Deceased) vs. Caroline Wangui Kiguru [2013] e KLR. The preliminary objection is therefore well founded.

The plaintiff/respondent submitted that she brought this suit by way of originating summons dated 26th September, 2017 seeking to be declared as an adverse possessor with respect to parcel of land No. West Bunyore/Ebusakami/1852. That there is an existing suit in Maseno Laws Courts being Maseno PMCC No. 115 of 2014 where the defendant in this suit is the plaintiff and is seeking vacant possession. These suits are both properly before competent courts and are not subjudice. The two suits are distinctive in their nature.

This court has considered the preliminary objection and the submissions herein. A Preliminary Objection, as stated in the case of Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) E.A 696,

“……… 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”

In the same case, Sir Charles Newbold said:

“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 had to be ascertained or if what is sought is the exercise of judicial discretion”.

The issue as to whether or not this suit is res judicata or sub judice is therefore properly raised as a Preliminary Objection. Section 6 and 7 of the Civil Procedure Act Cap 21 provides as follows:

Section 6.

“No court shall proceed with the trial of any suit or proceedings in which the matter in issue is directly and substantially in issue in a previously instituted suit or proceedings between the same parties, or between parties under whom they or any of them claim, litigate under the same title, where such suit or proceedings is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”

Section 7.

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

In this suit the plaintiff herein filed this suit by way of originating summons dated 26th September, 2017 seeking to be declared as an adverse possessor with respect to parcel of land No. West Bunyore/Ebusakami/1852. The defendant had earlier filed a suit in Maseno Laws Courts being Maseno PMCC No. 115 of 2014 between the same parties in a court of competent jurisdiction seeking vacant possession. It is a finding of fact that the parties are the same and the subject matter is the same. I find that in the interest of justice these proceeding should and shall be stayed to await the outcome of that case.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 9TH MAY 2019.

N.A. MATHEKA

JUDGE