Sergon v Kiprop (Environment and Land Appeal E009 of 2023) [2024] KEELC 4 (KLR) (15 January 2024) (Judgment)
Neutral citation:
[2024] KEELC 4 (KLR)
Republic of Kenya
Environment and Land Appeal E009 of 2023
L Waithaka, J
January 15, 2024
Between
Benjamin Kiptum Sergon
Appellant
and
Dickson Kiprop
Respondent
Judgment
Background
1.This Appeal arises from the decision of Hon. Caroline Ateya SRM made on 5th May 2023 in Kabarnet MELC No.38 of 2022. Through the impugned ruling, the learned trial magistrate upheld a notice of preliminary objection taken up by the respondent seeking to strike out the appellant’s suit with costs on the ground that it is res sub judice Iten ELC Case No. E006 of 2022.
2.In upholding the respondent’s preliminary objection, the learned trial magistrate inter alia stated:-
3.Aggrieved by the said determination, the plaintiff (now appellant) appealed to this court on ten (10) grounds that can be reduced to three broad grounds namely: -(i)That the learned trial magistrate erred by upholding the defendant’s notice of preliminary objection yet it did not meet the threshold of a preliminary objection;(ii)That the learned trial magistrate erred by considering issues that were neither raised/pleaded nor submitted upon by the respondent;(iii)That the learned trial magistrate erred by failing to consider the plaintiff’s (appellant’s) submissions.
4.The appellant prays that the Appeal be allowed and an order be made setting aside the subordinate court’s decision/order dismissing his suit against the respondent and substituting the same with an order dismissing the respondent’s preliminary objection dated 13th February 2023 with costs; the appellant’s case against the respondent be reinstated and matter be ordered to proceed on its merits and costs of the Appeal.
5.Pursuant to directions given on 17th October 2023, that the Appeal shall be disposed off by written submissions, parties filed submissions which I have read and considered.
Appellant’s Submissions
6.In his submissions filed on 28th November 2023, the appellant submits that the preliminary objection raised by the respondent was unfounded because the cause of action in Kabarnet MELC No.38 of 2022 is trespass to land while the cause of action in Iten ELC No.006 of 2022 is adverse possession; causes of action in the two suits are different. The learned trial magistrate is said to have erred by failing to find that the causes of action in the two suits are different and prayers sought in the two cases different.
7.It submitted that the learned trial magistrate erred by dismissing the suit instead of staying it as ought to happen where the court determines that the case is sub judice.
8.It is pointed out that the defendant did not annex any pleadings in Iten ELC No.006 of 2022 and submitted that the learned trial magistrate acted on speculation.
9.The preliminary objection is said to have been based on matters of fact that needed to be ascertained through a deponed affidavit.
10.It is further submitted that the learned trial magistrate erred by considering issues that were neither raised/pleaded nor submitted upon by the respondent like the issue of the respondent being a biological brother of Joshua Kiprop (the applicant in the Iten case), which is a pure matter of fact.
11.Based on decision in the case of Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another (2022) eKLR, where E.C. Cherono J, held that the issue as to whether or not a suit is res sub judice is not a pure point of law capable of being considered as a preliminary objection properly raised and does not meet the litmus test of what in law amounts to a preliminary objection, this court is urged to find that the Appeal has merit and allow it as prayed.
Respondent’s Submissions
12.In his submissions filed on 7th December 2023, the respondent states that it is not in dispute that another matter over the same subject matter had been instituted on 16th December 2023, at the High Court being Iten O.S No.E006 of 2022 where the parties are litigating over the same subject matter and submits that the preliminary objection which gave rise to this appeal was properly decided.
13.Maintaining that there are pending proceedings previously instituted over the subject matter, the title in question being the same to wit L.R Baringo/Kiboino ‘B’/427, the respondent urges this court to uphold the trial court’s decision and dismiss the Appeal with costs to him.
Analysis and Determination
14.The doctrine of res sub judice on which the defendant premised his preliminary objection is provided for in Section 6 of the Civil Procedure Act which provides as follows:-
15.In Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another (2022)eKLR, the court held that the issue as to whether or not a suit is res sub judice is not a pure point of law capable of being considered as a preliminary objection properly raised and does not meet the litmus test of what in law amounts to a preliminary objection. In that regard see the said case where E.C. Cherono J. statedThe judge cited with approval the case of Margaret Wachu Karuri v John Waweru Ribiro (2021) eKLR where faced with a similar question, whether sub-judice can be raised as a preliminary point, the court held as follows:-
16.In the circumstances of this case, the defendant did not file a statement of defence. There was contention as to whether or not the issues raised in the suit before the Kabarnet court are the same as those raised in the suit pending at the Iten court. There was also the issue as to whether the parties in the suits were the same. Those issues, unless admitted or acknowledged by the parties in their pleadings, required evidence to prove. As pointed out herein above, the issues were neither admitted nor acknowledged by the parties.
17.In his submissions, the plaintiff acknowledged that Iten ELC Case No.006 of 2022 existed and that it was filed before the suit hereto but contended that the parties are different and causes of action different. He pointed out that the defendant had not annexed any pleadings in Iten ELC Case No. 006 of 2022 thereby leaving the court to speculate on the issues raised in that suit.
18.Upon review of the cases urged by the parties concerning the preliminary objection taken up by the defendant/respondent, I agree with the plaintiff/appellant that the issues raised in the preliminary objection hereto relate to issues of fact which could only be proved through evidence being tendered in court. The submissions by parties, making reference to those pleadings could not make a proper basis of ascertaining the issues of fact presented before court to determine.
19.In any event, where a court finds a suit to be res subjudice unless the court determines that the suit is an abuse of the process of the court, the order that commends itself is an order for stay of the suit pending hearing and determination of the former or an order for consolidation of the suits if sought. In that regard, see the case of Kinatwa Co-operative Savings & Credit Society Limited v Kinatwa Prestige Ltd (2021) eKLR where it was stated:-
20.In view of the foregoing, I find the appeal to be merited and allow it as prayed.
DATED, SIGNED AND DELIVERED THIS 15TH DAY OF JANUARY, 2024.HON. L. N. WAITHAKAJUDGEIn the presence of:
- Mr. Kagunza for the Appellant
- N/A for the Respondent