https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3957

GKSKSS v GSS & another (Land Case E386 of 2025) [2026] KEELC 3957 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 3957 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E386 of 2025 CG Mbogo, J June 30, 2026 Between GKSKSS Applicant and GSS 1st Defendant SKD 2nd Defendant Ruling 1.Before this court for determination is the notice of motion and the notice of preliminary objection both dated 19th September, 2025 filed by the 2nd defendant/applicant. The notice of motion dated 19th September, 2025 is expressed to be brought under Sections 1B,3A, and 6 of the Civil Procedure Act, Order 2 Rule 15 of the Civil Procedure Rules seeking the following orders:1.Spent.2.That the main suit filed by the plaintiff be dismissed and/or struck out in entirety.3.That in the alternative, the main suit filed by the plaintiff herein in the form and manner of the plaint dated 5th August, 2025 be stayed pending the hearing and determination of the Matrimonial Property Cause, HCFOS E063 of 2025, SKD versus GSS filed on the 17th July, 2025 between the 2nd and 1st defendant herein involving the same property and issues.4.That costs be provided for. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the 2nd defendant/ applicant sworn on even date. She deposed that the plaintiff respondent is the mother of the 1st defendant herein, and that together with the 1st defendant, they were married and lived on Apartment no. 205 since the year 2019. She deposed that they divorced in August 2023, and that the family of the plaintiff and 1st defendant began pressuring her to cede her matrimonial property rights of apartment no. 205 to them. 3.The 2nd defendant/applicant deposed that she filed matrimonial property cause HC(OS) E063 OF 2025, SKD versus GSS on 17th of July, 2025 to seek her fair share of the matrimonial property, which is registered in both their names. The plaintiff/respondent in collusion with the 1st defendant/respondent filed this matter before this court in bad faith on 5th August, 2025 to purposefully frustrate and delay trial in the matrimonial property cause and further embarrass and cause anxiety upon her. She deposed that they have been barraging her with letters since the divorce to impose pressure to cede her share of the matrimonial property. 4.As advised by her advocates on record, the property by dint of the Matrimonial Property Act falls within the ambit and jurisdiction of the high court, and that the subsequent filing of this suit in this court after a similar case over the same subject matter has already been filed in the matrimonial property cause deposes bad faith and is a clear abuse of the court process. 5.The 2nd defendant/applicant filed the notice of preliminary objection dated 19th September, 2025 challenging the suit dated 5th August, 2025 on the following grounds:-1.The suit is sub judice by virtue of Section 6 of the Civil Procedure Act, there being pending matrimonial property case HCFOS E063 of 2025 filed on 17th July, 2025 between the 2nd defendant and the 1st defendant concerning the same apartment and issues of ownership and beneficial entitlement. This suit was filed later on 5th August, 2025.2.The suit is defeated for non-joinder and misjoinder of parties since the agreement for sale and exchange was between the plaintiff and Mr. Davinder Singh Devgun who is not a party to this suit. The necessary parties are not before the court contrary to Order 1 of the Civil Procedure Rules.3.This honourable court lacks jurisdiction to entertain issues that are properly within the province of the Matrimonial Property Act in a pending earlier cause between spouses. The proper forum is the matrimonial property court seized of HCFOS E063 of 2025 which has coordinate status with this court and may direct the appropriate forum. 6.The application was opposed by the replying affidavit of the plaintiff/respondent sworn on 11th of December, 2025. She deposed that the said matrimonial cause was an afterthought, filed with the intention to defeat her property rights over the suit property, which is her property. This was by an agreement for sale and exchange of apartment no. 205 on LR. No. 1xx0/1x/4x4 with town house no. 22 on LR No. 7xx8/1x dated 2nd March, 2021. The plaintiff/respondent deposed that the suit property belongs to her and the defendants were only registered as her nominees who hold the same in trust for her. 7.The plaintiff/respondent further deposed that she communicated to the defendants that she wished to terminate the nomination vide letter dated 29th April 2025, which the 1st defendant conceded to and expressed readiness to execute all the requisite documents necessary to confer back ownership to the plaintiff. However, the 2nd defendant/applicant was not agreeable to this, necessitating the filing of this suit. The plaintiff/respondent contends that there is danger of having contradicting decisions if this application is allowed, since the matrimonial causes court is likely awaiting the determination of this suit first before proceeding. 8.The application and the preliminary objection were canvassed by way of written submissions. The 2nd defendant/applicant filed written submissions dated 17th February, 2026. The plaintiff/respondent filed undated written submissions. I have considered the application, the replying affidavit and the written submissions filed. The issue for determination is whether the application and the notice of preliminary objection have merit. 9.Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows:-“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, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 10.Also, in the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:-“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 11.From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. 12.In applying the above principles to the instant objection, I am not satisfied that the objection raises pure points of law. On non-joinder and misjoinder of parties, Order 1 Rule 9 of the Civil Procedure Rules is clear in case of a misjoinder and states as follows:-“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 13.This ground alone disqualifies the preliminary objection. Secondly, the 2nd defendant/applicant argued that this suit is sub judice by virtue of the matter before the high court in HCFOS E063 of 2025. To establish whether this suit is sub judice, there is need to look outside of the pleadings, and comb through evidence. A preliminary objection is therefore not the best tool to challenge a suit on such grounds. 14.The 2nd defendant/applicant seeks that the plaintiff’s suit be struck out on the basis of pending matrimonial property cause, HCFOS E063 of 2025, SKD versus GSS filed on 17th of July 2025, involving the same suit property herein. On the other hand, the plaintiff/respondent contends that the suit property belongs to her and not the defendants, who are her nominees. 15.Jurisdiction is the first and most critical issue that a court must have before it is competent to embark on any task before it and this issue has been raised by the 2nd defendant/applicant. Without jurisdiction, the court must down its tools. This was stated in the case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) where it was held:-“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given...Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 16.Jurisdiction is conferred by the Constitution, statute or both. In the present case, Section 17 of the Matrimonial Causes Act Cap 152 provides that:-“A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.(2)An application under subsection (1)—a.shall be made in accordance with such procedure as may be prescribed;b.may be made as part of a petition in a matrimonial cause; andc.may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.” 17.The court contemplated in this statute is the high court and magistrate’s courts that are conferred with such jurisdiction, as provided by Rule 6 (1) of the Matrimonial Property Rules which states that:-“Court to which application may be made1.An application to enforce a claim relating to matrimonial property may be made in any proceedings under the Act—a.to the high court in any case where the value of the matrimonial property which is the subject matter of the claim exceeds the pecuniary jurisdiction of a magistrate's court; orb.to a magistrate's court having civil jurisdiction to adjudicate matters within the court's pecuniary jurisdiction.” 18.The suit property, apartment no. 205 on LR. No. 1xx0/1x/4x4 is jointly owned by the defendants as lessees as per annexture marked ‘SKD 4’ which is a long-term lease. On the other hand, the plaintiff/ respondent relies on the agreement for sale and exchange dated 2nd March, 2021 to assert ownership over the suit property. It is stipulated in this agreement that one Davindar Singh Devgun, the vendor, who had purchased the said apartment no. 205 while the plaintiff was the registered proprietor of town house no. 22 on LR No. 7xx8/1x. The agreement was for the vendor to give all his rights and interests in the said apartment no. 205 to the plaintiff’s/respondent’s nominees, in exchange for the town house. 19.It is evident that there exists an ownership dispute between the parties, in which jurisdiction to determine such disputes only lies with this court pursuant to Section 13 of the Environment and Land Court Act. Equally, the suit property is registered in the names of the defendants and following their divorce, the 2nd defendant/applicant now seeks a share of the property before the high court. 20.In the case of AKM v NNN [2019] eKLR, the court determined that:-“On the other hand, the jurisdiction of the ELC Court is limited by Article 162(2) and (3) of the Constitution of Kenya and Section 13(2) of the ELC Act No. 19 of 2011. Article 162(2)(b) states that ELC Court has the mandate to hear and determine disputes relating to use and occupation and title to land. The provisions of Section 13(2) of the ELC Act clearly gives power to ELC to hear and determine disputes relating to inter alia, environment, land use planning, title, boundary disputes, land administration and management, choses in action or other instruments granting enforceable interests in land among other related issues. The division of matrimonial property upon dissolution of marriage in my view is outside the purview or the scope of ELC and the relief cannot be granted in that court and it is only to that extent that I find that this cause though it touches on similar properties like the ones mentioned in the cited ELC Court in Embu, is not sub judice. What this court is being called upon to do can only be done in this court. Although the issue of ownership is claimed at the ELC, the claim arises from the contribution made by virtue of marriage and it is not a challenge to the title of listed properties. As I have observed above the relationship between the parties herein was dissolved in 2015 and therefore the provisions of Matrimonial Properties Act No.49 of 2013 and Marriage Act No.4 of 2014 apply. Having said that, this court is unable to see or discern the wisdom in the decision by the applicant/plaintiff to mount two separate suits and particularly the action taken before the ELC Court but what I can state here without any doubt is that this cause certainly is not sub judice to the suit filed in ELC Court.” 21.In my view, neither party is barred from pursuing legal remedy from either this court or the high court. Indeed, this court is clothed with the jurisdiction to handle this matter, while the high court dealing with matrimonial causes exercises a different jurisdiction. However, there is possibility of conflicting decisions emanating from both courts as rightly argued and submitted by the 2nd defendant/ applicant. To prevent occurrence of such an event, Section 6 of the Civil Procedure Act provides as follows:-“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.In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties [2020] eKLR), the Supreme Court of Kenya stated as follows:-“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the court or judge for determination.” 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. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 23.From the above provision of the law and the cited authority, it is necessary to prevent the multiplicity of suits between the same parties, as such processes clog our judicial system creating case backlog. Where it is found that a similar suit has been filed, the court in its endeavor to ensure that there is justice, stays the proceedings in one matter to await the determination of the previously filed suit. While the plaintiff/respondent is not a party in the matter before the high court, it is necessary to note that the subject matter in both suits is apartment no. 205 on LR. No. 1xx0/1x/4x4. Thus, the appropriate remedy at this stage would be to stay the proceedings in this suit and await determination of the suit previously filed. In this case, HCFOS No. E063 of 2025 filed on 17th July, 2025 is the former suit. 24.From the above, the notice of preliminary objection dated 19th September, 2025 does not raise pure points of law and is hereby dismissed. I find merit in the notice of motion dated 19th September 2025 and it is allowed in the following terms:-i.The plaint dated 5th August, 2025 and the proceedings in this suit are hereby stayed pending the hearing and determination of the Matrimonial Property Cause, HCFOS E063 of 2025, SKD versus GSS filed on the 17th July, 2025 between the 2nd and 1st defendant.ii.Costs in the cause.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE30/06/2026.In the presence of:Ms. Benson Agunga - Court assistantMr. Gakunga for the Plaintiff/RespondentMr. Kilonzo holding brief for Mr. Danstan Omari for the 2nd Defendant/Applicant