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ELCDismissedNot stated in the judgment (Plaintiff's suit filed with Plaint dated 10th September 2014)· [2015] KEELC 112 (KLR)
Peter Xavier Indindi Ojiambori & 3 others v Registered Trustees of Archdiocese of Nairobi [2015] KEELC 112 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Defendant filed a preliminary objection dated 22nd October 2014 against the Plaintiff's suit seeking a declaration of exclusive ownership of plot L.R. No. 209/14854 in Villa Franca Estate, Nairobi, a permanent injunction against trespass and destruction, damages/mesne profits, and costs. The Defendant argued the suit offended Section 6 of the Civil Procedure Act because Civil Appeal No. 427 of 2006 (from CMCC No. 260 of 2006) involving the same parties was pending, and a prior suit, HCCC No. 1221 of 2006, on the same subject matter had been struck out in May 2007. The Defendant contended the Plaintiff should first pursue the appeal and only litigate here upon dissatisfaction, rendering Rules 8, 13 and 14 of the Practice Directions relevant. The Plaintiff countered that the present suit was distinct: the alleged interference (a toilet and borehole) was by the trustees of St. Bakhita Catholic Church, whose property adjoins the Plaintiff's, and the defendants and subject matter differed from the prior proceedings. The court framed three questions: whether two suits were pending, whether the issues were directly and substantially similar, and whether the parties were the same. It found a pending appeal existed but the Defendant in the instant suit differed from those in the appeal, no party had availed the lower court pleadings, and neither the memorandum of appeal nor the earlier ruling disclosed the disputed property. The objection was dismissed with costs of the application in the cause.
Key legal issues
#01
Whether Section 6 of the Civil Procedure Act bars the present suit as sub judice
Holding
The preliminary objection fails because the parties and subject matter of the two suits were not shown to be the same.
Reasoning
The court examined the pleadings and annexures. It found a pending appeal (No. 427 of 2006) in which the Plaintiffs are appellants, but the Defendant in the instant suit (Registered Trustees of St. Bakhita Catholic Church) differs from those in the prior suit, and nothing linked them. No party availed the pleadings from the lower court, and neither the memorandum of appeal nor the ruling in HCCC No. 1221 of 2006 identified the disputed property, so similarity of subject matter could not be established.
p. 2
Legal principles established
#- A party invoking Section 6 of the Civil Procedure Act (sub-judice doctrine) must demonstrate with certainty that the subject matter and parties of the two suits are the same; where the pleadings of the prior suit are not availed and the defendant in the prior suit differs, the objection fails.
Court orders
#- 1.The Defendant's preliminary objection dated 22nd October 2014 is dismissed as unmerited
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction over use, occupation of, and title to land (Practice Directions on Proceedings in the Environment and Land Courts invoked by counsel); objection founded on Section 6 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Xavier Indindi Ojiambori & 3 others v Registered Trustees of Archdiocese of Nairobi [2015] KEELC 112 (KLR)", Case Analysis (2015). Not stated in the judgment (Plaintiff's suit filed with Plaint dated 10th September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/112/eng@2015-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.