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ELCStruck OutELC Case (Mombasa), plaint filed 25 June 2020 (number not stated in judgment)· [2021] KEELC 4452 (KLR)

Rubis Energy Kenya PLC v SAS Africa General Trading Limited & 2 others [2021] KEELC 4452 (KLR)

Environment and Land Court of Kenya
20 January 2021
MSMunyao Sila
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out Rubis Energy's duplicate lawsuit, confirming identical cases filed later must be struck out, not just paused.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Subdivision No. 300 of Section XVI Mombasa (LR No. 1149), sued to restrain the defendants from interfering with a petrol service station operated by the 1st defendant under a dealership licence agreement dated 30 April 2018, with the 2nd and 3rd defendants as guarantors. The plaintiff alleged breach of the licence through minimal stock holdings and late orders, terminated the agreement by letter dated 20 June 2020, and sought a permanent injunction, compliance orders through the OCS Mombasa, costs and interest, supported by an interlocutory injunction application. The defendants, through affidavits of the 2nd defendant Hassan Said Boboo and a preliminary objection, contended the suit was sub judice Mombasa CMCC No. 632 of 2020, filed by the 1st defendant on 23 June 2020 challenging the termination, in which a temporary injunction had already been granted and confirmed on 20 July 2020. The court, canvassing the application and objection together, found the issues in both suits precisely similar and noted the plaintiff had actively litigated in the Magistrate's Court without contesting its jurisdiction. Holding that Section 6 of the Civil Procedure Act bars trial of a later suit and that striking out, not stay, is the proper remedy where parties, subject matter and issues are identical, the judge struck out the suit, declined any costs order because it was filed before service of the earlier pleadings, and made no orders on the injunction application, which was swallowed up in the dismissal.

Key legal issues

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01

Whether the suit should be struck out as sub judice under Section 6 of the Civil Procedure Act

Holding

The suit was struck out because the issues were precisely similar to those in the pending Mombasa CMCC No. 632 of 2020, in which the plaintiff had actively litigated

Reasoning

The court compared the two suits and found the issues identical. The plaintiff could raise anything it pleaded here by way of defence or counterclaim in the Magistrate's Court suit. The plaintiff had actively participated in the injunction application there and never challenged that court's jurisdiction. Continuing both suits would embarrass the judicial process, so the later suit had to go.

p. 2
02

Whether the remedy under Section 6 is stay or striking out

Holding

Striking out, not stay, is the proper remedy where the parties, subject matter and issues are the same

Reasoning

Although the marginal note to Section 6 reads 'stay of suit', the body of the section only prohibits courts from proceeding with the trial of a later suit. The court saw no value in staying a suit the law bars from proceeding, holding that stay applies only where outcomes are contingent, not where one suit's determination automatically spends the other. The court declined to follow Thiba Hydro's approach of transfer or stay.

p. 2

Legal principles established

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  • Under Section 6 of the Civil Procedure Act, where parties, subject matter and issues in a later suit are the same as a previously instituted pending suit, the proper remedy is to strike out the later suit rather than stay it
  • Stay of suit under Section 6 is appropriate only where the outcome of one suit is contingent on the outcome of another, not where the suits are identical such that determination of one renders the other spent
  • Where a similar suit is pending, the question is not whether the court has jurisdiction but whether it should exercise it, as continuing parallel litigation embarrasses the judicial process

Court orders

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  1. 1.The plaintiff's suit, being sub judice Mombasa CMCC No. 632 of 2020, is struck out
  2. 2.No orders as to costs
  3. 3.No orders made on the plaintiff's pending application for injunction

Authorities

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Legislation

  • Civil Procedure ActSection 6 (Stay of Suit), CAP 21

Cases cited (1)

  • Thiba Min Hydro Company Limited vs Josphat Karu Ndigwa
    (2013) eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act, CAP 21, Laws of Kenya (stay of suit / sub judice); inherent case-management jurisdiction of the ELC

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Rubis Energy Kenya PLC v SAS Africa General Trading Limited & 2 others [2021] KEELC 4452 (KLR)", Case Analysis (2021). ELC Case (Mombasa), plaint filed 25 June 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4452/eng@2021-01-20

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