Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC 867B of 2017 (Thika)· [2021] KEELC 418 (KLR)

Joseph Kimata Wachira & another v Wilson Waithaka Gitau & another [2021] KEELC 418 (KLR)

Environment and Land Court
10 December 2021
JKJ. G. Kemei
2,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Defendants raised a preliminary objection dated 29 September 2021 arguing that the Plaintiffs' suit, filed on 15 December 2017 seeking eviction of the Defendants from suit land, a permanent injunction, damages and costs, was sub judice by virtue of Nairobi ELC No. 131 of 2007 (Wilson Waithaka Gitau v Kenya Winston Company Limited), in which the 1st Plaintiff had been enjoined as an interested party by a Ruling dated 7 October 2014, having claimed under a sale agreement dated 26 May 2007 for purchase of LR No. 7418/30. The Plaintiffs, though served, did not oppose the objection. The Defendants relied on Section 6 of the Civil Procedure Act and authorities including the Republic v Paul Kihara Kariuki (Ex parte Law Society of Kenya) decision and the Supreme Court's advisory opinion in the KNCHR case, which set out the four elements of res sub judice. The court, applying the Mukisa Biscuit principles on preliminary objections, identified four related suits between the same parties over the same land, with mirrored prayers of declaration of ownership and eviction, before courts of concurrent jurisdiction. Although the ordinary remedy under Section 6 is a stay of the later suit, the judge declined to stay it as that would merely clog the judicial system; instead the parties were redirected to the existing suits. The preliminary objection was upheld, the suit was dismissed with costs to the Defendants. Delivered at Thika on 10 December 2021 via Microsoft Teams.

Key legal issues

#
01

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

Holding

Yes. The court found three other pending suits between the same parties over the same land and causes of action, so the suit offended Section 6 and the sub judice doctrine.

Reasoning

The court identified four related suits concerning LR No. 7418/30 between the same parties or their privies, with mirrored prayers for declaration of ownership and eviction, before courts of concurrent competent jurisdiction. Applying the Supreme Court's statement of the sub judice rule and Section 6 of the Civil Procedure Act, the later suit could not be maintained alongside the earlier pending suits.

p. 3
02

Whether filing multiple suits over the same subject matter amounts to abuse of court process

Holding

Yes. The multiplicity of actions between the same parties over the same subject matter constituted abuse of the judicial system.

Reasoning

Relying on Justice Mativo's exposition in the Law Society of Kenya judicial review, the court held that instituting a multiplicity of actions on the same subject matter between the same parties, even where a right to begin exists, is abuse of court process; litigation is not a game of chance, and parties must pursue existing suits rather than filing new ones.

p. 3
03

Whether the appropriate remedy was a stay of suit rather than dismissal

Holding

The court declined to merely stay the suit because a stay would serve no purpose amid the multiplicity of suits; the suit was dismissed outright.

Reasoning

Although Section 6 ordinarily requires a stay of the later suit, the court exercised discretion to dismiss it, reasoning that a stay would only clog the judicial system given the number of already-pending suits. The parties were redirected to the existing suits, which they must litigate to logical conclusion.

p. 3

Legal principles established

#
  • When two or more cases are filed between the same parties on the same subject matter before Courts with jurisdiction, the later-filed matter ought to be stayed pending determination of the earlier suit
  • A party invoking res sub judice must establish more than one suit over the same subject matter, earlier institution of one suit, pendency before courts of competent jurisdiction, and identity of parties or their representatives
  • A preliminary objection must raise pure points of law, per Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd

Court orders

#
  1. 1.The Preliminary Objection is upheld
  2. 2.The suit be and is hereby dismissed
  3. 3.The Plaintiffs are condemned to pay costs

Authorities

#

Legislation

  • Civil Procedure ActSection 6

Cases cited (5)

  • Republic vs Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • David Ndii & others vs Attorney General & Others
    [2021] eKLR
  • Kinatwa Cooperative Savings & Credit Society Limited Vs Kinatwa Prestige Limited
    (2021) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction under Article 162(2) of the Constitution and the Environment and Land Court Act; matter determined under Section 6 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Joseph Kimata Wachira & another v Wilson Waithaka Gitau & another [2021] KEELC 418 (KLR)", Case Analysis (2021). ELC 867B of 2017 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/418/eng@2021-12-10

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