Christine Chepkorir v Benjamin Langat & another [2017] KEELC 1720 (KLR)

The court applied the principle of res sub judice under section 6 of the Civil Procedure Act. Section 6 requires the court to stay a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. Since the applicant's O.S was filed after the respondent's suit, the section does not apply to stay the earlier suit; the applicant's later O.S would be the one caught by section 6. The court followed Kiama Wangai v John N. Mugambi & Another on the mandatory nature of section 6.

The court found that although the applicant raised consolidation as an afterthought in a further affidavit, it was the more just approach given that both suits concern the same suit land and substantially the same issues. Relying on Nyali Security Guards & Services Ltd v Municipal Council of Mombasa and Korean United Church of Kenya v Seng Ha Sang, the court invoked its inherent powers under section 3A of the Civil Procedure Act and ordered consolidation of ELC No. 11 of 2016 with ELC No. 43 of 2017 (O.S).

The court agreed with counsel for the respondent that the question of whether the title KERICHO/KYOGONG/1259 was fraudulently obtained and should revert to the original title KERICHO/KYOGONG/10 is the main bone of contention in both the suit and the Originating Summons. It is a substantive issue which cannot be determined on an interlocutory application without the matter being subjected to a full hearing; the prayer was therefore declined.