[2023] KEELC 22539 (KLR)

Mbogo v Mbogo (Environment and Land Appeal E016 of 2022) [2023] KEELC 22539 (KLR) (24 October 2023) (Ruling)

Neutral citation: [2023] KEELC 22539 (KLR)

Republic of Kenya

In the Environment and Land Court at Embu

Environment and Land Appeal E016 of 2022

A Kaniaru, J

October 24, 2023

Between

Arthur Munene Mbogo

Appellant

and

Veronicah Rwamba Mbogo

Respondent

Ruling

1. This ruling is on a Preliminary objection dated 13. 02. 2023 and filed on 21. 02. 2023. The objection has been brought by the Respondent – Veronicah Rwamba Mbogo - and the prayers sought are as follows:a.That the application dated 01. 02. 2023 is sub-judice as the applicant has a similar application dated 10. 11. 2022 filed before this Honorable Court and the same is yet to be heard and determined.b.That the application is an abuse of the due process of this court and the same should be struck off.

2. The Preliminary objection was canvassed through written submissions. The Respondent’s submissions were filed on 31. 05. 2023 whereas the Appellants submissions were filed on 12. 06. 2023. On where the application dated 1/2/2023 is sub-judice, the respondent submitted in part as follows:“Its not in dispute that the appellant/Applicant before this honourable court has filed before this honourable court, two similar applications (Notice of Motions) seeking for similar prayers”The respondent continued:“We thus submit that, the said applications as filed, wantonly offnd the principle of subjudice, as well as, the provisions of Section 6 of the Civil Procedure Act.”In his submissions, the appellant on his part set out the prayers in the two applications under scrutiny and then submitted thus:“That on 16th February, 2023 when the matter came up for mention the appellant’s advocate on record now withdrew prayers 1, 2 and 3 in the application dated 10th November, 2022. The prayers are no longer part of the application dated 10th November 2022 and the application dated 1st February 2023 is therefore not similar to the application dated 10th November, 2022. ”

3. I have considered the preliminary objection as well as the rival submissions. The issue for determination is whether the preliminary objection meets the fundamental threshold and whether the same is merited.

4. The court in the case of Reuben Kioko Mutyaene v Hellen Kiunga Miriti & 4 others; Ntalala Eric Mutura & another (Interested Parties) [2021] eKLR held the following;“The circumstances in which a preliminary objection may be raised was laid out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, as follows:“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 has to be ascertained or if what is sought is the exercise of judicial discretion.”The effect of a preliminary objection if upheld, renders any further proceedings before the court redundant or unnecessary. Thus a preliminary objection may only be raised on a pure point of law. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.

5. From the foregoing provisions, it is apparent that in order for a preliminary objection to hold, it must be demonstrated by the party bringing the preliminary objection that there is no contest as to the facts; that the preliminary objection has been raised on a ‘pure question of law’.

6. The doctrine of Sub-judice is founded on Section 6 of the Civil Procedure Act. It states 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.”

7. The Respondent has submitted that the application dated 01. 02. 2023 is sub-judice as the Appellant has filed a similar application dated 10. 11. 2022 filed before this court and that earlier application is yet to be heard and determined. I have had a chance to look at the two applications, the application dated 01. 02. 2023 is seeking the following prayers;a.That in the first instance this application be certified as urgent and be heard Exparte.b.That pending the hearing of this application interpartes, the Judgement/Decree of the Business Premises Rent Tribunal dated 30. 09. 2022 in Tribunal Case No. 40 of 2017 Embu, for eviction of the Appellant/Applicant from Plot No. Embu/Municipality/1125/325 be stayed.c.That pending the hearing and determination of this Appeal the Judgement/Decree of the Business Premises Rent Tribunal dated 30. 09. 2022 in Tribunal Case No. 40 of 2017 –Embu, for eviction of the Appellant/Applicant from Plot No. Embu/Municipality/1112/325 be stayed.d.That costs be provided for.

8. On the other hand the Notice of Motion application dated 10. 11. 2022 is seeking the following orders;1. Spent2. Pending the hearing and determination of this application there be a stay of the judgement and subsequent orders in the Reference known as Business Premises Rent Tribunal Embu No. 40 of 2017 Arthur Munene Mbogo v Veronicah Rwamba Mbogo delivered on the 30. 09. 2022. 3.Pending the hearing and determination of this appeal there be stay of the judgment and subsequent orders in the Reference known as Business Premises Rent Tribunal Embu No. 40 of 2017 Arthur Munene Mbogo v Veronicah Rwamba Mbogo delivered on the 30. 09. 2022. 4.This Honourable court be pleased to grant the appellant leave to file appeal out of time.5. The draft Memorandum of Appeal annexed herein dated 10/11/2022 be deemed as properly filed.6. Costs of this application be in the cause.

9. The prayers in both applications are similar in terms of seeking for stay of execution of the court’s judgement in the Reference that had been filed in the Business Premises Rent Tribunal in Embu case No. 40 of 2017. However it is noteworthy that on 16. 02. 2023 when the application dated 10. 11. 2022 came up for hearing, the appellant’s advocate withdrew the said application in terms of prayers (1), (2) and (3) of the said application and made an application for prayer (3) and (4) to remain. The court then marked the prayers withdrawn and directed that the application was still pending to the extent of the prayers not withdrawn. The respondents preliminary objection is therefore based on the wrong premise. He got the facts wrong.

10. The doctrine of Sub judice applies when another suit, application, or proceeding is pending involving the same parties over the same subject matter. The court is satisfied that the Appellant withdrew the application dated 10. 11. 2022 in terms of the prayers for stay of execution which means that the said application for the said prayers no longer exists with regard to the orders of stay. The only application with prayers for stay of execution which is yet to be determined is the one dated 01. 02. 2023. The respondent ignored or overlooked the fact of withdraw of the prayers that would have made the two applications similar.

11. There being only one application pending the Respondent cannot successfully invoke the doctrine of sub judice. Furthermore, a preliminary objection ought to be on a pure point of law, argued on the presumption that all facts pleaded by either side are correct. A preliminary objection cannot be raised and sustained if any fact has to be ascertained. Whenever court retires to ascertain facts, as it has done in this scenario, no objection can be sustained.

12. The upshot of the above is that the Preliminary Objection dated 13. 02. 2023 lacks merit and the same is dismissed with costs to the Appellant.

RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 24TH DAY OF OCTOBER, 2023. In the presence of Okwaro for Appellant and M/s Wambugu for respondent.Court assistant: LeadysInterpretation: English/KiswahiliA.K. KANIARUJUDGE24. 10. 2023