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Court of AppealDismissedCivil Appeal (undated memorandum of appeal dated 19th March 2019)· [2025] KECA 313 (KLR)

John Kimathi Gathariki v Cheko Plot Owners Association & 1 other

Court of Appeal
21 February 2025
3,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a land dispute appeal because the appellant filed duplicate cases and left key parties out of the appeal.

What this practically means

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Executive summary

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The appellant sued the respondent in ELC Suit No. 120 of 2016 at the Environment and Land Court at Nairobi, alleging trespass structures, a pit latrine and sewage discharge on his plot, and sought their removal, demolition and damages. The respondent raised a preliminary objection that the suit was sub-judice, an earlier suit, CMCC No. 11379 of 2005, involving the same parties and subject matter, being pending. By a ruling of 25th January 2018 the ELC struck out the suit as sub-judice and an abuse of court process, with costs to the respondent. On appeal, the Court of Appeal (ole Kantai, Ali-Aroni and Mativo, JJA) first noted that the appellant's notice of appeal omitted the 1st defendant and the interested parties and did not comply with Rule 77 of the Court of Appeal Rules, 2022. The Court held that it could not properly issue orders adversely affecting necessary parties who were not enjoined in the appeal, invoking Article 50 of the Constitution and natural justice, this being a sufficient ground of dismissal. On the merits, applying Section 6 of the Civil Procedure Act and the Supreme Court's exposition of the sub-judice rule, the Court compared the two suits and found them directly and substantially similar in parties, subject matter and relief; form is irrelevant, substance governs. It further held that filing parallel, substantially identical proceedings constitutes an abuse of court process which the court has inherent jurisdiction to suppress, so the judge did not err in dismissing rather than staying the suit. The appeal was dismissed with no orders as to costs, the respondent not having participated.

Key legal issues

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01

Non-joinder of necessary parties to the appeal

Holding

The appeal could not properly result in orders affecting the 1st defendant and interested parties who were omitted from the notice of appeal; this alone disposes of the appeal irrespective of its merits.

Reasoning

The impugned ruling granted orders in favour of Isaack Simeka Okiomeri, the 1st defendant at trial, who was not enjoined in the appeal. Relying on J.S. Yadav and Article 50 of the Constitution, the Court held that no order may be passed behind the back of a person adversely affecting him, and impleadment of a necessary party is mandatory. Even a meritorious appeal could not yield orders binding absent parties.

p. 3
02

Res sub-judice under Section 6 of the Civil Procedure Act

Holding

ELC No. 120 of 2016 was directly and substantially similar to CMCC No. 11379 of 2005, involving the same parties and same subject matter, and was therefore sub-judice.

Reasoning

The Court applied the two-limb test from Section 6 and the Supreme Court's KNCHR decision: two or more consecutive suits; matter in issue directly and substantially the same; same parties or those claiming under them; pending in a court with jurisdiction. Comparing the pleadings, both suits concerned the same boundary dispute, a wall erected on the appellant's land, sewer flowing into his land, and a pit latrine on his land. Substance, not framing, governs.

p. 4
03

Whether dismissal for abuse of process, rather than stay, was erroneous

Holding

The learned judge did not err; filing parallel, substantially identical suits amounts to an abuse of court process which the court has inherent jurisdiction to check.

Reasoning

Although Section 6 provides for stay of subsequent suits, the Court found the dismissal sustainable because multiplicity of actions on the same matter between the same parties, even where a right to begin exists, is an abuse of process. Relying on Graham Rioba Sagwe v Fina Bank, the abuse lies in the multiplicity and manner of exercising the right, and the court has inherent jurisdiction to protect its process.

p. 6

Legal principles established

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  • A court ought not to decide a case, or make orders, without the persons who would be vitally affected by its judgment being before it as parties; non-joinder of a necessary party is fatal to the relief sought.
  • For the doctrine of res sub-judice to apply, the matter in issue in the two suits must be directly and substantially the same, between the same parties or those claiming under them, litigating under the same title, in courts with jurisdiction to grant the relief; substance, not form, determines sub-judice.
  • Instituting a multiplicity of actions on the same subject matter between the same parties, even where there exists a right to begin the action, constitutes an abuse of court process.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No orders as to costs since the respondent did not participate in the appeal
On appeal from
Environment and Land Court at Nairobi
ELC Suit No. 120 of 2016
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court ruling of 25th January 2018; appeal instituted by notice of appeal under the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Kimathi Gathariki v Cheko Plot Owners Association & 1 other", Case Analysis (2025). Civil Appeal (undated memorandum of appeal dated 19th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/313/eng@2025-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.