Petronilla Mutuku Makilya & 2 others v Caroline Mbinya Kathendu & 4 others; Land Registrar, Machakos Land Registry & another (Interested Parties) [2022] KEELC 1318 (KLR)

The court noted there were no pleadings from Succession Cause No. 2712 of 2003 on record to verify the alleged overlap, and the parties disputed whether the suit property was wholly owned by the deceased. Ascertaining sub judice requires evidence of the pleadings and parties in both suits, so it is not a pure point of law. Further, Section 6 of the Civil Procedure Act provides for a stay, not dismissal, so striking out on that basis is untenable.

Applying the sufficiency-of-interest test from Law Society of Kenya v Commissioner of Lands, the court observed that the plaint (paragraph 10) asserts the Plaintiffs are beneficiaries entitled to inherit the suit property. That apparent beneficial interest suffices to sustain standing, so the objection that they lack letters of administration did not dispose of the suit at the preliminary stage.

Relying on D.T. Dobie and Yaya Towers, the court held that the power to dismiss a suit as an abuse of process is inherent but sparingly exercised in exceptional cases, given the right of access to justice and the duty to determine cases on merit. Since the Plaintiffs disclosed a semblance of a cause of action as beneficiaries, the suit was not vexatious or abusive.