City Square Properties Ltd v Uchumi Supermarket Ltd [2020] KEELC 3630 (KLR)
The bottom line
#A Meru landlord trying to evict a tenant in insolvency through a second court had the entire application struck out for duplicating a pending case.
What this practically means
#Executive summary
#Key legal issues
#Res sub judice under Section 6 of the Civil Procedure Act
The application was res sub judice because a similar application by the same applicant was pending in the insolvency suit and the insolvency court had issued stay orders in conflict with the relief sought
The court found that although the applicant disclosed the existence of the insolvency petition, it concealed the existence of orders issued by that court and of its own similar application filed on 21.3.2019 in the insolvency cause. Since that application remained live and under judicial consideration, the present application offended Section 6 of the Civil Procedure Act and could not be entertained.
Effect of stay/injunctive orders of a court of concurrent jurisdiction
The orders of 2.10.2018 curtailing the applicant's re-entry rights under clause 5(b) of the lease could only be challenged on appeal or review; proceeding afresh would amount to sitting on appeal over the insolvency court
The insolvency court's orders restrained eviction of the respondent and effectively prohibited the applicant from exercising its power of re-entry under the lease. Having found these orders curtained the applicant's rights, the court held the proper recourse was appeal or review. Allowing the present application would juxtapose its orders against those of the insolvency court, contrary to comity between courts of horizontal and concurrent jurisdiction.
Forum shopping and multiplicity of litigation
Litigants cannot be allowed the luxury of litigating similar issues in different courts while one application lies dormant
The court observed that under the Sustaining Judiciary Transformation era, litigants cannot have limitless litigation on similar issues in different courts. It was not open to the applicant to leave its application of 21.3.19 lying in the insolvency suit while prosecuting the same issues before the ELC, a misadventure akin to forum shopping condemned in the cited authorities.
Legal principles established
#- Section 6 of the Civil Procedure Act bars a court from proceeding with a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending before a court of competent jurisdiction
- A party aggrieved by orders of a court of concurrent/horizontal jurisdiction must pursue an appeal or review, not a fresh application in a different court, as forum shopping would spawn judicial anarchy
Court orders
#- 1.The application dated 3.9.2019 struck out, without determination on its merits, on grounds of the existence of a similar application and orders in the insolvency suit
- 2.Each party to bear their own costs of the application
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the ELC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "City Square Properties Ltd v Uchumi Supermarket Ltd [2020] KEELC 3630 (KLR)", Case Analysis (2020). Not stated in judgment (insolvency suit referenced: Insolvency Petition No. 25 of 2018, Nairobi High Court Commercial Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3630/eng@2020-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.