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ELCDismissedNot stated in the judgment (Kericho ELC matter; relates to CMCC No. 112 of 2014, Kericho)· [2020] KEELC 2329 (KLR)

Richard Kiplanagat Sigei v Grace Sang [2020] KEELC 2329 (KLR)

Environment and Land Court
27 May 2020
AKA. K. Kaniaru
775 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's sub judice rule only blocks suits while an earlier case is still pending; once that case is dismissed, you can proceed freely.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (A. K. Kaniaru, J) determined a preliminary objection filed on 29th October 2018 by the defendant, Grace Sang, seeking striking out of the plaintiff Richard Kiplangat arap Sigei's suit as fatally defective, sub judice, disclosing no reasonable cause of action and an abuse of court process. The objection rested on the pendency of a similar suit, Kericho CMCC No. 112 of 2014, between the same parties, invoking Section 6 of the Civil Procedure Act. Both sides filed submissions. The court restated the purpose of the sub judice rule - preventing courts of concurrent jurisdiction from simultaneously trying parallel suits over the same subject matter - and noted that issues and remedies must be directly and substantially similar for it to apply. However, the decisive fact was pendency: the plaintiff asserted the lower court matter had been dismissed for want of prosecution on 21st September 2018, while this suit had been filed on 25th April 2017 and the objection on 29th October 2018. Applying the principle that a fact alleged and denied is not proved, the court held the defendant failed to demonstrate that the lower court matter was still pending, and that the sub judice rule concerns pending, not decided, matters. The court also observed, obiter, that had the objection been raised earlier it would likely have succeeded, since the suits appeared materially similar and the defendant acted too late. The preliminary objection was dismissed on 27th May 2020. No costs order appears in the ruling.

Key legal issues

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01

Whether the suit was sub judice under Section 6 of the Civil Procedure Act

Holding

The preliminary objection failed because the defendant did not prove that the Kericho CMCC No. 112 of 2014 suit was still pending; it had been dismissed for want of prosecution on 21st September 2018, before the objection was filed on 29th October 2018

Reasoning

Section 6 bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted pending suit between the same parties. The court found the suit in the lower court had been dismissed on 21st September 2018, while this suit was filed on 25th April 2017 and the preliminary objection on 29th October 2018. Since the rule concerns pending matters only, the objection could not stand, and the defendant bore the burden of proving pendency and failed.

p. 2
02

Whether the defendant discharged the burden of proving pendency of the lower court suit

Holding

No - the defendant needed to demonstrate from the lower court record that the matter was still pending trial and did not do so

Reasoning

The court held that where a fact is alleged and denied, it is not proved. The defendant asserted the lower court matter was pending; the plaintiff asserted it had been dismissed. The defendant was required to show the record did not disclose dismissal and that trial was pending. Having failed to do so, the objection rested on a possibly non-existent fact and was dismissed.

p. 2

Legal principles established

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  • The sub judice rule in Section 6 of the Civil Procedure Act applies only to pending matters, not decided ones
  • For sub judice to apply, the issues in the subsequent suit must be directly and substantially the same as those in the earlier suit, and the remedies broadly similar
  • A fact alleged by one side and denied by the other is not proved; the alleging party bears the burden of establishing it
  • Delay in raising a preliminary objection on sub judice grounds may defeat it where the competing suit is subsequently dismissed

Court orders

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  1. 1.The preliminary objection is hereby dismissed

Authorities

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Legislation

  • Civil Procedure ActSection 6
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; ruling on a preliminary objection under the Civil Procedure Act (Cap 21), Section 6

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Richard Kiplanagat Sigei v Grace Sang [2020] KEELC 2329 (KLR)", Case Analysis (2020). Not stated in the judgment (Kericho ELC matter; relates to CMCC No. 112 of 2014, Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2329/eng@2020-05-27

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