Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNotice of Motion dated 22nd October, 2020 (suit filed 13th November 2020)· [2022] KEELC 725 (KLR)

Beatrice Muthoni Gathima & 2 others v Arthur Wambugu Muiga & 4 others [2022] KEELC 725 (KLR)

Environment and Land Court
24 March 2022
JOJ. O. Olola
2,099 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The three Plaintiffs, alleging themselves beneficiaries of the estate of Batram Muiga (deceased), filed suit seeking declarations that the sub-division of Land Parcel Mahiga/Munyange/65 and the registration of resultant parcels in the names of the five Defendants was irregular and illegal, and moved the court by Motion dated 22nd October, 2020 for injunctions, prohibitory orders over the resultant parcels and Plot No. 20 Ndunyu Market, an order that the 1st Respondent deposit Kshs.202,630/- compensation monies, and an order for the reopening of the 3rd Plaintiff's locked house. The Defendants opposed, contending the disputes belonged before the Nyeri High Court in Succession Cause No. 40 of 1990, and raised a Notice of Preliminary Objection dated 21st July, 2021 invoking Sections 6 and 34(1) of the Civil Procedure Act, noting a similar application dated 8th November, 2016 filed in that Succession Cause by some of the Plaintiffs. The Plaintiffs replied that they had withdrawn that application and that the cause was closed by a Ruling of 8th March, 2021, but produced no evidence of the withdrawal or orders. Applying the Supreme Court's statement of the sub-judice doctrine in Kenya National Commission on Human Rights v Attorney General & 17 Others, the court found the issues in this suit substantially in issue in the earlier proceedings and that the Plaintiffs had not proved their withdrawal. The Preliminary Objection succeeded and the entire suit was stayed pending determination of the application dated 8th November, 2016, with costs of the application in the suit.

Key legal issues

#
01

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

Holding

The suit is stayed as res sub-judice because the issues raised are substantially in issue in the earlier Succession Cause application, which the Plaintiffs failed to prove had been withdrawn

Reasoning

The court found that the prayers in this suit were of the same nature as those in the Plaintiffs' application dated 8th November, 2016 in Nyeri High Court Succession Cause No. 40 of 1990, concerning shares of Mahiga/Munyange/65 and Plot No. 20 Ndunyu Market between the same parties. Although the Plaintiffs contended that the application had been withdrawn and the cause closed on 8th March, 2021, they produced no evidence of the withdrawal or any such order. Section 6 therefore barred this Court from proceeding.

p. 3
02

Whether the court should consider the other grounds in the Preliminary Objection

Holding

Having found the proceedings res sub-judice, the court declined to consider the other issues raised, including Section 34(1)

Reasoning

The court determined that a finding of res sub-judice was dispositive of the Preliminary Objection at that stage. Since the objection succeeded on the Section 6 ground alone, it did not deem it fit to examine the remaining grounds in the Notice of Preliminary Objection dated 21st July, 2021.

p. 3

Legal principles established

#
  • A party invoking the doctrine of res sub-judice must establish multiple suits over the same subject matter, one instituted before the other, both pending before competent courts, and between the same parties or their representatives
  • The purpose of the sub-judice rule is to prevent courts of concurrent jurisdiction from entertaining parallel litigation over the same cause of action, subject matter and relief

Court orders

#
  1. 1.The Defendants' Notice of Preliminary Objection succeeds
  2. 2.These proceedings are stayed pending determination of the application dated 8th November, 2016 filed in Nyeri High Court Succession Cause No. 40 of 1990
  3. 3.The costs of the application shall be in the suit

Authorities

#

Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 34(1)

Cases cited (1)

  • Kenya National Commission on Human Rights -vs- The Attorney General & 17 Others
    (2020) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; objection founded on Sections 6 and 34(1) of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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, "Beatrice Muthoni Gathima & 2 others v Arthur Wambugu Muiga & 4 others [2022] KEELC 725 (KLR)", Case Analysis (2022). Notice of Motion dated 22nd October, 2020 (suit filed 13th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/725/eng@2022-03-24

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