Petitioners v 2nd, 3rd & 4th Respondents (Sub judice Preliminary Objection)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection as raised is merited
Key legal issues
#Whether the Petition should be struck out for offending section 6 of the Civil Procedure Act (sub judice)
The Preliminary Objection was upheld; the Petition was struck out in its entirety because its subject matter - compulsory acquisition of LR No. Ndivisi/Muchi/1265 - was directly and substantially in issue in ELC Petition No. 563 of 2016 between the same parties, as the Petitioners themselves admitted in their pleadings.
The court applied the Mukisa Biscuits definition of a preliminary objection and section 6 of the Civil Procedure Act. The Petitioners' own pleadings and Notice of Motion admitted similar matters, same causes of action, same parties and same subject matter as ELC Petition No. 563 of 2016, which was earlier in time and pending. Whether a suit is sub judice depends on substance, not form. Section 6 prevents abuse of process and multiplicity of suits, so the drastic power of striking out was warranted.
Legal principles established
#- The sub judice rule under section 6 of the Civil Procedure Act bars courts from hearing suits whose matter in issue is directly and substantially in issue in a previously instituted suit between the same parties
- Whether a suit is sub judice is determined by its substance, not its form
Court orders
#- 1.The Petition herein is struck out in its entirety
- 2.Costs of the Petition awarded to the 2nd, 3rd and 4th Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original constitutional petition jurisdiction of the Environment and Land Court; objection founded on section 6 of the Civil Procedure Act
Relief refused
#The Petitioners' substantive constitutional petition
Struck out as sub judice ELC Petition No. 563 of 2016, contravening section 6 of the Civil Procedure Act
Costs
Costs to the 2nd, 3rd and 4th Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find merit in the Preliminary Objection dated 17/05/2023, and for which reasons the Petition herein is struck out in its entirety with costs to the 2nd, 3rd and 4th Respondents.
Sub judice is a principle that go to the core of rule of law as far as litigation is concerned.
Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings are held before two difierent courts with concurrent jurisdictions or before the same court at difierent times.
It is not the form in which the suit is framed that determines whether it is sub judice. Rather it is the substance of the suit and looking at the pleading in both cases.
Issues in the judgment
#Respondents' preliminary objection ground 2 characterises the petition as an 'appeal' disguised as a constitutional petition against a ruling in ELC Petition No. 563 of 2016, but the court did not determine or pronounce on that ground, deciding only the sub judice ground
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Petitioners v 2nd, 3rd & 4th Respondents (Sub judice Preliminary Objection)", Case Analysis (2024). Constitutional Petition No. E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/660/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.