https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3235

Gitau v Alhaajar Investment Limited & 2 others (Environment and Land Petition E002 of 2024) [2026] KEELC 3235 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3235 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Petition E002 of 2024 JA Mogeni & AM Cockar, JJ May 25, 2026 IN THE MATTER OF ARTICLES 40 &65 OF THE CONSTITUTION OF KENYA, 2010 Between Patrick Ndichu Gitau Petitioner and Alhaajar Investment Limited 1st Respondent The Chief Land Registrar 2nd Respondent The Honorable Attorney General 3rd Respondent Ruling 1.This Ruling is in respect of the Preliminary Objection filed by the 1st Respondent dated 25/02/2025 for reasons that:1.The Petition herein is sub-judice and offends the provision of Sections 6 of the Civil Procedure Act Cap. 21 for the reason that:a.There exists a similar matter in which the Petitioner and the 1st Respondent are parties to i.e. "Kiambu High Court HCCOM No. 8 of 2020 - Patrick Ndichu Gitau & Patrick Ndichu Gitau & Sons Limited -versus- Alhaajar Investments Limited, and Others", which is pending determination before the High Court at Kiambu.b.The subject matter of the petition and that in Kiambu High Court HCCOM No. 8 of 2020 are the same, as both causes challenge the legality of the sale of property L.R Number 21096/195 to Alhaajar Investments Limited and whether the sale complied with the provisions of Article 65 of the Constitution.c.The orders sought in the petition are identical to those sought in Kiambu High Court HCCOM No. 8 of 2020. In both causes, the Petitioner seeks a declaratory order that the transfer of property L.R No. 21096/195 situated within Juja township is illegal and contravenes Article 65(1) of the Constitution.2.The integrity of this Honorable Court is at limbo with the existence of two suits between same parties, running concurrently in different Courts of equal status raising similar issues and seeking similar orders over the same property. In Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR, the Court determined the objective of the principle on sub judice rule is “to stop the filing of multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of Courts with competent jurisdiction, issuing conflicting decisions over the same subject matter.”3.The entire Petition is brought in bad faith, is frivolous, vexatious, and an abuse of the Court process hence liable for striking out with costs.4.The 1st Respondent together with the Preliminary Objection filed written submissions dated 25/03/2025. The 1st Respondent’s written submissions, are anchored on the primary contention that the Petition is a classic case of sub-judice, thereby offending the mandatory provisions of Section 6 of the Civil Procedure Act (Cap 21). The 1st Respondent moves the Court to find that there exists an active, previously instituted suit Kiambu High Court HCCOM No. 8 of 2020: Patrick Ndichu Gitau & Patrick Ndichu Gitau & Sons Limited -versus- Alhaajar Investments Limited & Others involving the same parties and litigating under the same title. It is submitted that the subject matter in both causes is identical, specifically challenging the legality of the sale and transfer of L.R No. 21096/195 in Juja, and seeking declaratory orders regarding compliance with Article 65 of the Constitution.5.In reinforcing this position, the 1st Respondent relies on the judicial wisdom in Kenya Bankers Association -versus- Kenya Revenue Authority [2019] eKLR, asserting that the underlying object of the sub-judice rule is to restrain Courts of concurrent jurisdiction from simultaneously adjudicating upon parallel litigations to avoid the risk of contradictory verdicts. Further citing Toili & 2 Others -versus- Speaker, the National Assembly & 2 Others [2025] KEHC 1148 (KLR) and ARC Packaging Limited & Another -versus- Sundries Bargains (Nairobi) Limited & Another [2025] KEELC 942 (KLR), the 1st Respondent maintains that where the issues are directly and substantially the same, the later suit constitutes an abuse of the Court process. Consequently, the Court is urged to uphold the objection and strike out the Petition with costs, as the continued maintenance of this suit alongside the Kiambu matter creates a multiplicity of proceedings that the law expressly forbids.6.In response, the Petitioner filed their written submissions opposing the Notice of Preliminary Objection. The Petitioner, submits that the 1st Respondent’s application is fatally defective as it fails to meet the threshold of a pure point of law. Drawing from the locus classicus of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696, the Petitioner contends that a Preliminary Objection must be argued on the assumption that all pleaded facts are correct and cannot be raised where a Court is required to ascertain facts or exercise judicial discretion.7.By annexing an Amended Plaint from HCCOMM No. 8 of 2020 to prove that the suits are identical, the 1st Respondent has invited the Court to delve into contested factual details and evidence, thereby blurring the lines of the objection as settled in George Oraro v Barak Eston Mbaja [2005] KEHC 731 (KLR) (Civil Suit 85 of 1992). The Petitioner maintains that the objection is improperly grounded on factual information that stands to be tested by normal rules of evidence, and as such, it is not a true Preliminary Objection that can dispose of the suit at this interlocutory stage.8.Substantively, the Petitioner invokes the predominant purpose test as articulated in Martin Luther Mc Were v James Mabango Ambundo [2022] eKLR (Environment and Land Case E211 of 2021) and the Court of Appeal decision in Co-operative Bank of Kenya Limited vs. Patrick Kangethe Njuguna & 5 Ors [2017] eKLR to distinguish the two causes of action. It is argued that while the suit at the Kiambu High Court relates to commercial disputes involving a legal charge, statutory notices, and accounting questions, the present Petition specifically challenges the 1st Respondent’s ownership rights over freehold land under Article 65 of the Constitution and seeks the cancellation of title. The Petitioner asserts that since the High Court’s jurisdiction under Article 165(3) and the Environment and Land Court’s (ELC) exclusive jurisdiction under Article 162 are distinct, the issues are neither identical nor substantially the same. Consequently, the Petitioner submits that the doctrine of sub-judice under Section 6 of the Civil Procedure Act is inapplicable and prays for the dismissal of the objection with costs.9.The 2nd and 3rd Respondents did not file any responses to the 1st Respondent’s Preliminary Objection. Analysis of the Law and Determination 10.Having considered the substance of the Petition, the Preliminary Objection and the written submissions two questions present themselves squarely before the Court, and they must be addressed in logical sequence.i.The first is procedural in nature being whether the Preliminary Objection as raised by the 1st Respondent satisfies the legal threshold of a true Preliminary Objection as understood and settled in law.ii.The second, and substantively more consequential, is whether the present Petition offends the rule against sub judice as codified under Section 6 of the Civil Procedure Act, Cap. 21, by reason of the pendency of Kiambu High Court HCCOM No. 8 of 2020. 11.Both questions are deeply interrelated, and the answer to the first may well determine whether this Court ever reaches the second. 12.Before any Court can entertain a Preliminary Objection on its merits, it must satisfy itself that what has been presented before it is, in truth, a Preliminary Objection in the legal sense of the word. This is not mere proceduralism for its own sake it is a discipline that Courts have consistently and deliberately enforced to ensure that judicial time is not squandered litigating non-issues by parties. 13.The locus classicus on this question remains the Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696. Law, J.A., stated:“So far as I am aware, 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." 14.Sir Charles Newbold P., in the same case, went further to identify a mischief that has unfortunately persisted to this day. He observed at page 701:“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse issues. This improper practice should stop." 15.Ojwang, J. (as he then was) in the case of George Oraro v. Barak Eston Mbaja [Supra], where the learned Judge held:“A 'Preliminary Objection' correctly understood is now well defined as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed. Where a Court needs to investigate facts, a matter cannot be raised as a Preliminary Objection. Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence." 16.The Petitioner on this very point has mounted a spirited challenge. It is his argument that 1st Respondent, by annexing an Amended Plaint from HCCOM No. 8 of 2020 in support of its Preliminary Objection, has drawn this Court into a comparative exercise of evaluating two sets of pleadings from different suits and asking it to make a factual finding that the subject matter, parties, and reliefs are one and the same. That exercise, the Petitioner submits, is not an exercise in law it is an exercise in fact, and it cannot be carried out by assuming the Petitioner's pleadings to be correct. It requires the Court to look outside the Petition itself, examine extraneous material, and reach a conclusion that is fundamentally factual in character. 17.This argument of the Petitioner carries heavy legal consideration. Since a genuine Preliminary Objection must arise from the pleadings themselves, by clear implication, and must be capable of being argued on the sole basis that everything the Petitioner has pleaded is true. The moment an objector is obliged to produce and rely upon documentary evidence from a collateral proceeding in this case, the Amended Plaint from Kiambu to establish the alleged identity of issues, parties, and prayers, the objection ceases to be a pure point of law. It is now anchored, at least in part, on a factual foundation that is liable to be challenged. 18.That said, I have occasionally seen decisions where Courts have consistently held that a Preliminary Objection grounded on sub judice or res judicata is capable of constituting a pure point of law in appropriate circumstances. The test is whether the Court must ascertain disputed facts to resolve it, or whether a comparison of the pleadings alone on both sides, taken at face value is sufficient. 19.However, the operative condition remains that the Court proceeds on the assumption that the pleaded facts are undisputed. If the 1st Respondent’s case rests upon a comparison of facts that the Petitioner disputes particularly the claimed identity of subject matter and reliefs then the objection cannot be properly disposed of at this interlocutory stage. 20.In these circumstances therefore the Court must therefore tread carefully. The Court ought to consider the face of the Petition and whatever is on the face of the record, without descending into a mini-trial of disputed factual averments about what each suit contains. Whether it can resolve the sub-judice question in those circumscribed terms is the test. 21.Section 6 of the Civil Procedure Act, Cap. 21, in its plain terms, provides:“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." 22.The Latin expression sub judice is derived from the words meaning "under the judge," and the Black's Law Dictionary, 9th Edition, as cited by the Supreme Court in Kenya National Commission on Human Rights v. Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR), defines it as: "Before the Court or Judge for determination." In that landmark Advisory Opinion decision, the Supreme Court pronounced itself in the following terms at paragraph 67:“The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of Courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before Courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit." 23.That Supreme Court pronouncement represents the highest judicial articulation of the sub-judice principle in Kenya, and it is to that standard that this Court must hold the present Preliminary Objection. 24.The 1st Respondent's case is that all the conditions for the sub-judice rule are satisfied namely: the parties are the same, the subject property is the same land L.R. No. 21096/195, the core challenge in both proceedings is the legality of the sale of that property to the 1st Respondent, and the relief sought being a declaratory order that the transfer contravenes Article 65(1) of the Constitution is identical. If this is established, the policy rationale is obvious: two Courts of equal status cannot simultaneously adjudicate the same dispute between the same parties without risking contradictory outcomes, which would embarrass the administration of justice and shake public confidence in the Judiciary. 25.The Petitioner, however, challenges this position with what he terms the predominant purpose test. Drawing on the Court of Appeal decision in Co-operative Bank of Kenya Limited v. Patrick Kangethe Njuguna & 5 Others [2017] KECA 79 (KLR), the Petitioner argues that the Court must look not merely at the property in dispute, but at the dominant legal question in each proceeding. The Court of Appeal in the above matter considered the question of jurisdiction applied the "predominant purpose" or "dominant test" to determine Court jurisdiction, Ruling that when the core issue is a lender-borrower relationship and the enforcement of a security, charge over land, the matter falls under the High Court’s Commercial jurisdiction, not the Environment and Land Court (ELC). The Court of Appeal then held that a charge over land and disputes arising therefrom did not constitute use of land within the meaning of Article 162(2)(b) of the Constitution, such that the dominant dispute was of a commercial and contractual nature properly falling within the civil jurisdiction of the High Court. 26.The Petitioner applies this reasoning to argue that HCCOM No. 8 of 2020 at Kiambu is fundamentally a commercial dispute involving a legal charge, statutory sale notices, and accounting questions matters squarely within the civil jurisdiction of the High Court while the present Petition is a Constitutional challenge to the 1st Respondent's capacity to hold freehold land under Article 65 of the Constitution, which falls within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) as read with Section 13 of the Environment and Land Court Act. Because the jurisdictions are distinct, the Petitioner argues, the suits cannot be directed and substantially in issue in the same manner. 27.Thus, there is a meaningful legal distinction between a suit challenging whether a sale was conducted in accordance with the contractual and statutory requirements of a charge (such as the adequacy of statutory notices, accounting obligations, and procedural compliance under the Land Act), and a Petition challenging whether the acquirer of title has a Constitutional right to hold the category of land involved at all. The former asks; was the transaction procedurally proper? The latter asks; was the transaction Constitutionally permissible? These questions, while they may overlap at their edges, can generate different answers and require different remedies. 28.If the Kiambu proceedings are primarily about the enforcement or setting aside of a charge and the obligations arising from a commercial lending transaction, while the present Petition is about whether the 1st Respondent as what appears to be a non-citizen or a company controlled by non-citizens can validly hold freehold title in Kenya under Article 65(1) of the Constitution, then the dominant legal questions may indeed be different, even if both suits refer to the same land. 29.Moreover, Article 65(1) of the Constitution specifically restricts the holding of freehold title by non-citizens or foreign entities. If the Petition is genuinely directed at this Constitutional question the kind of title the 1st Respondent now holds then this is a question that a Constitutional Petition under Article 22 and 165(3)(b) may properly raise before the Environment and Land Court in its Constitutional jurisdiction regardless of what is happening in a Commercial Court proceeding. The Constitutional Court's jurisdiction to enforce fundamental Constitutional rights and resolve Constitutional controversies is not easily ousted merely because some aspect of the same property is in contention elsewhere. 30.Having come to that position, still the Court cannot be blind to the practical reality presented by the 1st Respondent. If the Petitioner succeeded in HCCOM No. 8 of 2020 and secured a declaration that the sale was null and void which is precisely what is sought in that suit the present Petition would be rendered otiose. And if this Court were to separately and concurrently declare the transfer unconstitutional under Article 65, while the Kiambu Court adjudicates the commercial validity of the same transaction, the risk of conflicting outcomes one Court upholding the transaction and another nullifying it is real and troubling. It is in that circumstance that the concern raised by the 1st Respondent has genuine merit. 31.The distinction between the suits, however persuasive it may be in law, does not on its own necessarily insulate the Petition from the sub-judice rule if, on the facts as pleaded, the relief sought is substantively the same. A Court must look carefully at the prayers in each suit. As it has been well settled, the words matter in issue in Section 6 do not require the entire subject matter of both suits to be identical; they require that all disputed material questions in the subsequent suit are directly and substantially in question in the previous suit. The question is not whether the statutory and Constitutional provisions invoked in each suit are the same, but whether the questions to be answered, and the orders to be made, would in substance adjudicate the same controversy. 32.The 1st Respondent has also argued that the maintenance of this Petition alongside the Kiambu proceedings is an abuse of the Court process that it is brought in bad faith, is frivolous, and is vexatious. This is a serious allegation that must be treated with some caution. The mere fact that a party has instituted parallel proceedings does not automatically render those proceedings an abuse of process, particularly where the party genuinely believes that a Constitutional dimension exists which cannot be fully canvassed in a Commercial Court. The correct remedy under Section 6, as the Supreme Court acknowledged in the Kenya National Commission on Human Rights (supra) case, is not necessarily to strike out the subsequent proceedings, but rather to stay them pending determination of the earlier suit. 33.The characterisation of the Petition as bad faith litigation is a factual conclusion that requires a foundation beyond the mere existence of parallel proceedings, and it should not be made lightly, particularly at this preliminary stage. The appropriate enquiry is whether the sub-judice rule applies; if it does, the proper remedy is a stay, not a striking out with costs, unless it is plain and beyond argument that the Petition discloses nothing beyond what is already ventilated in the earlier suit. Disposal Orders 34.Having carefully considered the rival submissions, the relevant authorities, and the nature of the questions raised, I find that the appropriate disposition in these circumstances is not to strike out the Petition with costs as prayed by the 1st Respondent, since the Constitutional question under Article 65(1) is a matter that deserves a proper hearing on the merits and cannot be disposed of summarily as an abuse of process at this stage. 35.That said, the risk of concurrent and potentially conflicting pronouncements over the same property cannot be entirely dismissed. The Preliminary Objection accordingly succeeds only in part. The Court declines to strike out the Petition, but orders that it be stayed pending the final determination of Kiambu High Court HCCOM No. 8 of 2020. Should that suit conclude without resolving the Constitutional question of the 1st Respondent's capacity to hold freehold title under Article 65(1), the Petitioner shall be at liberty to prosecute this Petition to its conclusion. Additionally, the characterisation of the Petition as brought in bad faith, as frivolous and vexatious, is a conclusion of fact that is not properly made at this interlocutory stage on the basis of a Preliminary Objection alone, and the relief of striking out with costs on that ground is declined. Costs of the Preliminary Objection shall be in the cause. 36.Mention to confirm progress on 24/09/2026.Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS VIDEO LINK THIS 25TH DAY OF MAY 2026.…………………………MOGENI JJUDGEIn the presence of:Mr. Masinde for Petitioner/RespondentMs. Soi holding brief for Mr. Kubai for the 1st Respondent2nd and 3rd Respondents - AbsentMr. Melita - Court Assistant…………………………MOGENI JJUDGE