Kobil Petroleum Limited v Alfaways Limited & 2 others [2018] KEELC 438 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's suit contravened section 6 of the Civil Procedure Act (subjudice) given the pendency of HCCC No. 897 of 2010
The suit offended section 6 as the issues between the plaintiff and the 2nd defendant were substantially the same and between the same parties as in the previously instituted suit
The court compared the pleadings in the present suit and HCCC No. 897 of 2010 and found the issues substantially the same, with both suits concerning the ownership of the entire parcel LR 1/933 and occupation of portions thereof. Both suits were between the same parties litigating under the same title, and HCCC No. 897 of 2010 was still pending, so the court was precluded from proceeding with trial of this suit as between the plaintiff and the 2nd defendant.
Whether the suit was res judicata under sections 7 and 8 of the Civil Procedure Act
The suit was not res judicata because HCCC No. 897 of 2010 had not been heard and determined
Res judicata under section 7 requires that the previously instituted suit has been heard and finally determined. Since HCCC No. 897 of 2010 was still pending, the plaintiff's suit could not be struck out as res judicata, though it was barred under section 6, which empowers the court to stay it.
The appropriate remedy for the breach of section 6
A stay of the present suit pending determination of HCCC No. 897 of 2010, rather than striking out or consolidation
The court held that stay was the best course. Striking out was unavailable as res judicata had not crystallised, and consolidation or hearing the suits side by side would encourage multiplicity of suits, which public policy frowns upon. The plaintiff's filing of multiple suits over the same subject matter instead of joining all parties in one suit was unjustified.
Legal principles established
#- Section 6 of the Civil Procedure Act precludes a court from trying a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title, and empowers the court to stay the later suit
- A suit pending before another court cannot be res judicata under section 7 until it has been heard and determined
Court orders
#- 1.This suit is stayed pending the hearing and final determination of Nairobi HCCC No. 897 of 2010, Family Bank Limited v Kobil Petroleum Limited or further orders by the court
- 2.The 2nd and 3rd defendants shall have the costs of the application
- Jurisdiction invoked
- Sections 3A, 6, 7 and 8 of the Civil Procedure Act, Chapter 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kobil Petroleum Limited v Alfaways Limited & 2 others [2018] KEELC 438 (KLR)", Case Analysis (2018). ELC Suit No. 505 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/438/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.