[2017] KEELC 2306 (KLR)
The court found that the grounds raised in the preliminary objection by the 1st defendant, namely sub judice, requirement for a counterclaim, and failure to issue statutory notice, all invite arguments and are not pure points of law. As such, they do not meet the threshold for a preliminary objection as established...
Source-derived case information.
- Citation
- [2017] KEELC 2306 (KLR)
- Parties
- Plaintiff: Gatura Marigu Gacwe; Defendant: Simon Mwikamba Ekurura; Defendant: The District Land Registrar Tharaka Nithi District; Defendant: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 216 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Prior to Hearing of Main Suit
- Outcome
- preliminary objection dismissed; suits consolidated
- Judges
- FM Njoroge
- Legal Topics
- Sub Judice Principle, Counterclaim Requirements, Statutory Notice Government Proceedings, Case Consolidation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gatura Marigu Gacwe
Plaintiff
Simon Mwikamba Ekurura
Defendant
The District Land Registrar Tharaka Nithi District
Defendant
The Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Prior to Hearing of Main Suit
Legal Issues
- 1 Whether the suit is sub judice in light of a pending suit over the same subject matter.
- 2 Whether the plaintiff was required to file a counterclaim instead of a fresh suit.
- 3 Whether the mandatory statutory notice under the Government Proceedings Act was issued before instituting the suit.
Ratio Decidendi
The court found that the grounds raised in the preliminary objection by the 1st defendant, namely sub judice, requirement for a counterclaim, and failure to issue statutory notice, all invite arguments and are not pure points of law. As such, they do not meet the threshold for a preliminary objection as established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. The court therefore dismissed the preliminary objection and proceeded to order consolidation of the related suits, with the earlier suit to be treated as the main file and the present suit as a counterclaim.
Court Disposition
preliminary objection dismissed; suits consolidated
Orders
- The preliminary objection is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 216 OF 2017
GATURA MARIGU GACWE…..……….....................................…….........…..PLAINTIFF
VERSUS
SIMON MWIKAMBA EKURURA……………...............………….......1ST DEFENDANT
THE DISTRICT LAND REGISTRAR THARAKA NITHI DISTRICT.....2ND DEFENDANT
THE ATTORNEY GENERAL…………...........……………….......…....3RD DEFENDANT
RULING
1. The 1st Defendant’s Notice of Preliminary Objection reads as follows:
BE YEE AFORE-NOTIFIED. Prior to the hearing herein, the 1st defendant shall argue the unfolding points of law to have this case dismissed with proper costs to him. That is to say:-
1. By dint of Section 6 of the Civil Procedure Act, Cap. 21, Laws of Kenya, this suit is sub-judice CHUKA E.L.C. CASE NO. 6 OF 2017 (formerly MERU E.L.C. CASE NO. 34 OF 2015) which is pending between the plaintiff herein (as the only defendant therein) and the 1st defendant herein (as the sole plaintiff therein) over the same L.R. NO. THARAKA/NKONDI “A”/1196.
2. The plaintiff herein ought to have pleaded a counter-claim in the afore-said CHUKA E.L.C. CASE NO. 6 OF 2017 instead of filing a fresh suit, by virtue of Order 7 Rules 3, 7 and 8 of the Civil Procedure Rules, 2010.
3. The mandatory 30 days statutory notice under Sections 13 and 13A of the Government Proceedings Act, Cap. 40 Laws of Kenya, was not issued prior to the institution of this case.
2. The Preliminary Objection was canvassed on 21st June, 2017.
3. I find that the 3 grounds proffered in the Preliminary Objection invite arguments thus rendering them not pure points of law.
4. In the circumstances, I dismiss the Preliminary Objection.
5. Costs shall be in the cause.
6. I order that Chuka ELC. 216 OF 2017 and Chuka ELC.6 of 2017 be consolidated with Chuka ELC. 6 of 2017 becoming the main file and Chuka ELC No. 216 of 2017 to be deemed as a counterclaim.
7. The plaintiff in Chuka ELC 6 of 2017 should fully comply with Order 11, Civil Procedure Rules within the next 30 days and all the other parties in the consolidated suit should fully comply with Order 11 Civil Procedure Ruleswithin 30days after receipt of the compliance documents filed by the plaintiff in Chuka ELC. 6 of 2017.
8. Hearing of the suit on 19th September, 2017
9. It is so ordered.
Delivered in open court at Chuka this 21st day of June, 2017 in the presence of:
CA: Ndegwa
Kiautha Arithi for the plaintiff in ELC 216 of 2017
Miss Kungu or 2nd and 3rd defendants in ELC 216 of 2017
Mrs Mwanzia for the plaintiff in ELC 6 OF 2017
P. M. NJOROGE
JUDGE