Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment as provided· [2021] KEELC 2463 (KLR)

Sohail Regency Managemenet Company Limited v Déjà Vu t/a Coco Glam Nail & Tipsy Corner & 2 others [2021] KEELC 2463 (KLR)

Environment and Land Court
23 July 2021
BEB M Eboso
1,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to strike out a nuisance lawsuit because the parties differed from an earlier case, and instead ordered both cases heard together.

What this practically means

#

Executive summary

#
The plaintiff, a management company for Sohail Regency Apartments on Raphta Road, Westlands, sued the 1st defendant (operator of the Déjà Vu night club), the 2nd defendant (owner of the leased premises) and a licensing authority, alleging nuisance from loud music and vibration, and sought declarations, permanent injunctions, damages for nuisance, costs and interest. It also brought a further amended notice of motion dated 8/8/2019 seeking interlocutory injunctive relief. The 2nd defendant filed a notice of motion dated 18/10/2019 seeking striking out of the suit as frivolous, vexatious and an abuse of process, or alternatively a stay pending ELC Petition No. 2 of 2017, a petition filed by residents of the same apartments over the same dispute. Applying Section 6 of the Civil Procedure Act as explained by the Supreme Court in the KNCHR case, the court held that although the petition preceded and related to the same dispute, the full elements of res sub-judice were absent because the parties were not identical - Celino Limited was a respondent in the petition but not a party to the suit, and the 1st defendant here was not a party to the petition. Since the alleged authors of the alleged torts differed, striking out or staying the suit would be improper. Instead, the court consolidated the suit with ELC Petition No. 2 of 2017, designated the petition as the lead file, referred the plaintiff's further amended application to the court seized of the petition for directions, and ordered costs in the cause. The substantive nuisance claim remains for determination in the consolidated proceedings.

Key legal issues

#
01

Whether res sub-judice under Section 6 of the Civil Procedure Act warranted striking out or staying the suit

Holding

No. The full elements of res sub-judice were not established because the parties in the pending petition and this suit are not identical.

Reasoning

The court accepted that the petition preceded the suit and concerned the same dispute, but held that the identity-of-parties element failed: Celino Limited, a respondent in the petition, was not a party to this suit, and the 1st defendant in this suit was not a party to the petition. With different alleged tortfeasors, parallel findings would be avoided by consolidation, not by striking out or staying the suit.

p. 2
02

The appropriate case-management order where related proceedings over the same dispute exist

Holding

Consolidation, with the earlier petition as the lead file, and referral of the interlocutory application to the court seized of the lead file.

Reasoning

To avoid parallel proceedings and parallel findings, the court consolidated the suit with ELC Petition No. 2 of 2017, designated the petition as the lead file, and directed that the plaintiff's further amended application be placed before the court handling the petition, taking into account any orders or directions already issued there. Costs were left in the cause.

p. 2

Legal principles established

#
  • The elements of res sub-judice require more than one suit over the same subject matter, one instituted before the other, both pending before courts of competent jurisdiction, and the same parties or their representatives
  • Where suits over the same dispute are brought by different parties, the proper remedy is consolidation rather than striking out or staying one suit

Court orders

#
  1. 1.This suit is consolidated with ELC Petition No 2 of 2017, and Petition No 2 of 2017 shall be the lead file
  2. 2.The plaintiff's further amended application dated 8/8/2019 shall be placed before the court seized of Petition No 2 of 2017 for appropriate directions
  3. 3.Costs shall be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSection 6

Cases cited (1)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Section 6 of the Civil Procedure Act (res sub-judice) engaged on the striking-out/stay application

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sohail Regency Managemenet Company Limited v Déjà Vu t/a Coco Glam Nail & Tipsy Corner & 2 others [2021] KEELC 2463 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2463/eng@2021-07-23

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