Tahir Sheikh Said Investment Limited v Administrator – TSS Grain Millers Ltd & 2 others [2018] KEELC 451 (KLR)
The bottom line
#Kenya's High Court struck out a duplicate property lawsuit, confirming you cannot file a second case over the same dispute while the first is still pending.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was sub judice under section 6 of the Civil Procedure Act
The suit was sub judice Mombasa HCC No. 3 of 2016 as the matters in issue were directly and substantially the same, between the same parties, and the earlier suit was pending in a court of competent jurisdiction.
The court read the three conditions in section 6 disjunctively. The plaintiff was the same plaintiff in both suits; the 2nd defendant's rights derive from the 3rd defendant's actions and could be litigated through the 3rd defendant. Both plaints challenged the sale and transfer of MSA/BLOCK 1/316, and the validity of the charge enabling the statutory power of sale ran through both suits, making the matters directly and substantially in issue in the pending suit.
Whether the suit was an abuse of the court process warranting striking out rather than a stay
Filing the fresh suit while the earlier suit was pending was an abuse of process and the court struck out the suit instead of merely staying it.
The plaintiff knew of the pending suit when filing the current one; nothing prevented withdrawal of the earlier suit if circumstances had changed. The filing appeared designed to obtain interim reliefs which were indeed granted on the court process. Relying on the Court of Appeal decision in Abud Abdalla Omar, striking out is an available remedy where a suit is sub judice, and the plaintiff would not be left without a remedy since the claim survives in HCC No. 3 of 2016.
Whether res judicata applied
Res judicata did not apply because the earlier suit had not been heard and determined on merits; only an interlocutory injunction application had been determined and later discharged.
The court distinguished between an interlocutory ruling and a determination on merits. Since HCC No. 3 of 2016 remained pending and untried, the doctrine of res judicata could not be invoked, though the sub judice rule under section 6 still applied.
Costs as against the 1st defendant
Since the plaintiff conceded the claim against the 1st defendant at an early stage, each party was to bear its own costs.
Applying the Mativo J factors in Cecilia Karuru Ngayu, the court noted the plaintiff's concession, the early termination of the claim, and the minimal costs incurred by the 1st defendant, and held this a fit case for each party to bear its own costs.
Legal principles established
#- Res judicata cannot apply where the earlier suit has not been heard and determined on merits; a prior ruling on an interlocutory injunction does not found res judicata.
- The disjunctive 'or' in section 6 of the Civil Procedure Act means a suit need not fulfil all three conditions to be sub judice.
- A party aware of a pending suit cannot file a second suit on the same subject matter; if circumstances change, the proper course is to withdraw the earlier suit, not file a fresh one.
Court orders
#- 1.The plaintiff's suit against the 1st defendant terminated on the plaintiff's own admission, with each party bearing their own costs of the suit
- 2.The plaintiff's suit against the 3rd defendant struck out as an abuse of the court process for being sub judice, with costs of the application and the suit awarded to the 3rd defendant
- 3.The plaintiff's suit against the 2nd defendant struck out under the sub judice rule, not for want of reasonable cause of action
- 4.Costs of the suit against the 2nd defendant to abide the outcome of the costs order in HCCC No. 3 of 2016; costs of the 2nd defendant's application awarded to the 2nd defendant
- Jurisdiction invoked
- Original civil jurisdiction (the judgment does not cite the specific constitutional/statematic provision; the suit was filed as a plaint)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Keroche Industries Limited (Plaintiff) v Kipkenda, Kiplagat & Co. Advocates (Defendants) - Application to strike out HCCC No. 271 of 2019[2020] KEHC 3987 (KLR)22 Jul 2020
- Jerina Jebet Suter v Kenya Commercial Bank Ltd & 3 Others[2019] KEHC 419 (KLR)5 Dec 2019
Cite this brief
#Cite this brief
Caselaw, "Tahir Sheikh Said Investment Limited v Administrator – TSS Grain Millers Ltd & 2 others [2018] KEELC 451 (KLR)", Case Analysis (2018). Civil Case No 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/451/eng@2018-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.