https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4632

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELC CASE NO. E011 OF 2025(OS)** **ONESMUS GUMBO KAI** **CHARO JOHN NGUMBAO** **ALEX KIPIGHO MHAMBI KASHURU & 64 OTHERS ......PLAINTIFFS** **VERSUS** **NICHOLAS STEPHEN ZANI ............................................. DEFENDANT** **RULING** 1. The Defendant filed a Notice of Preliminary Objection dated April 25, 2025, seeking dismissal of this suit on the ground that it violates the doctrine of *sub judice* under Section 6 of the Civil Procedure Act, among other grounds, with costs. 2. The issues I then frame for the decision of this Court are whether the PO is sustainable and the current suit ought to be struck out by dint of the doctrine of *sub judice*. 3. Parties were directed to file written submissions. I acknowledge receipt of submissions from counsel for the parties. 4. The Defendant submits that the doctrine of sub judice is set out in Section 6 of the Civil Procedure Act. Section 6 of the Civil Procedure Act, Cap. 21, 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 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.”*** 1. The Plaintiffs submit that the issues raised in the PO are factual and that the Court cannot dispose of the matter via a PO without evidence and without the benefit of perusing the suit referred to by the Defendant. Therefore, the PO does not fall within the four corners of **Henry Wanyama Khaemba v Standard Chartered Bank Limited and another (2014) eKLR**, which echoes the leading decision in **Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A 696.** 2. Regarding whether we have a proper PO before this Court, as submitted by the parties in the **Henry Wanyama Khaemba** (supra), the Court set out the threshold for a PO as follows: **“3] The legal delimitations for a preliminary objection were set a long time ago in the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A 696. The principle (preliminary objection) is not in dispute and I do not think anything novel could be said about it. It has been and continues to be quoted and reinforced by the superior courts including the Court of Appeal, and recently by the Supreme Court. I did not, therefore, understand why Mr Onsando wanted to re-invent the wheel. Nonetheless, I shall restate the principle for purposes of clarity.** **As per Law J.A:** **“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.”** **As per Sir Charles Newbold P:** **“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.”** **As per our own J.B. Ojwang J (as he then was) in a simple and clear manner in the case of Oraro v Mbajja [2005] e KLR that:** **I think the principle is abundantly clear. A preliminary objection, correctly understood is now well identified as, and declared to be the 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 preliminary objection, and 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. I am in agreement...that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”** 1. Defendant contends that a previously instituted and still pending suit - **Malindi ELCLC Case No. E063 of 2024** - involves the same subject matter, ownership of Plot Kilifi Mtwapa 192, has the same parties (or those claiming under them), and is pending before a court of competent jurisdiction. 2. This file was before me on July 30, 2025. It was brought to my attention that there existed **Malindi ELCLC Case No. E063 of 2024** and **Malindi ELC OS No. 1 of 2025,** in which the Defendant in the former suit has sued the Plaintiffs for vacant possession, and in the latter suit a claim for adverse possession has been brought, all involving the same subject matter, albeit different parties but claimed to be litigating under the parties disclosed. 3. The Court, in the spirit of active case management, called for the three files to provide directions on how to proceed. 4. Although **Malindi ELCLC Case No. E063 of 2024** was filed earlier, the same counsel represented the parties, and the parties had not defended the suit. The Court directed that the Defendants originate a motion to Defend and have the grievances raised herein canvassed and heard in the earlier suit to avoid the proliferation of suits over the same subject matter. 5. Whereas a PO can be looked at in a narrow sense as raising a pure point of law, the Defendant has raised the point that the current suit is sub judice, which is a point of law. 6. As submitted by the Defendant, citing the Supreme Court of Kenya case of **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR),** with which I concur on the *sub judice* rule: ***“The purpose of the 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... the matter that is filed later ought to be stayed in order to await the determination in the earlier suit.”*** 1. Since **Malindi ELCLC Case No. E063 of 2024** is still pending, and this Court directed the parties here to be joined for ease of disposal of the issues raised here and in the former suit, then it is my finding that the PO raised here is germane and is allowed to the extent of striking out the current suit with costs to the Defendants. 2. All other issues raised in the PO can be addressed in **Malindi ELCLC Case No. E063 of 2024**. **Dated, signed, and delivered electronically in Nyeri on this 2nd day of July, 2026** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Matende for the Defendant** **Denis: Court Assistant** **In the absence of:** **Mr. Egunza for the Plaintiffs**