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ELCStruck Out· [2024] KEELC 702 (KLR)

Blue Heart International Trust v Nyadimo (Environment and Land Appeal E019 of 2023) [2024] KEELC 702 (KLR)

High Court of Kenya
13 February 2024
MOMogeni
3,396 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out an appeal and stay application filed over a rent dispute already running in another court, punishing duplicate litigation with costs.

What this practically means

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Executive summary

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The Appellant, Blue Heart International Trust, filed a Notice of Motion dated 5/09/2023 seeking a stay of execution of a Ruling delivered on 1/09/2023 by Hon. Caroline Cheptoo Kemei (CM) in Milimani MCCC/E2567/2023, in which the lower court had upheld a preliminary objection, found the suit res judicata, and dismissed the Appellant's suit. The Respondent, Jael Risper Nyadimo, filed a preliminary objection dated 2/10/2023 seeking to strike out the application on the ground that Sections 3A, 6 and 7 of the Civil Procedure Act barred the court from entertaining the matter, since the Appellant was prosecuting parallel suits (MCCC/E2567/2023 and MCCC/E0270/2023) involving the same parties, the same suit property (L.R No 209/13738/10 South C, Ash Gate Court, Nairobi), and the same dispute over rent arrears and distress for rent. The Respondent further argued the Appellant had obtained identical interim orders in the first suit that had been denied in this court, amounting to abuse of process. Applying Mukisa Biscuits and the sub judice authorities, the court found the dispute in both suits was the same and between the same parties litigating under the same title, and rejected the Appellant's argument that a difference in the number of applicants distinguished the suits. Holding that granting the stay would effectively reinstate a suit directly and substantially in issue in the pending first suit in breach of Section 6 of the Civil Procedure Act, the court struck out both the appeal and the application with costs to the Respondent. No submissions were filed by either party despite directions to file.

Key legal issues

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01

Whether the preliminary objection based on Sections 6 and 7 of the Civil Procedure Act was merited

Holding

The objection was merited; the appeal offended Section 6 as it was directly and substantially in issue in the earlier suit MCCC E0270 of 2023 between the same parties over the same subject matter.

Reasoning

The court found that the dispute in both suits concerned the same rent arrears and distress for rent over the same suit property, between the same parties litigating under the same title. The Appellant's argument that a difference in the number of applicants distinguished the suits was rejected as untenable. Granting the stay sought would effectively reinstate a suit already held res judicata, breaching Section 6.

p. 7
02

Whether striking out was an appropriate remedy

Holding

Yes; the court exercised its drastic power of striking out in respect of both the appeal and the application.

Reasoning

Having found the suit offended Section 6 of the Civil Procedure Act, the court held this was an appropriate case for the drastic remedy of striking out, noting the multiplicity of suits and duplicate applications seeking identical interim orders across parallel suits, amounting to abuse of court process.

Legal principles established

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  • Section 6 of the Civil Procedure Act bars prosecution of parallel proceedings on the same subject matter between the same parties litigating under the same title.
  • In determining whether a suit is sub judice, the court looks at the substance of the suit rather than the form in which it is framed.
  • Differences in the number of parties between parallel suits do not defeat the sub judice rule where the subject matter is the same.

Court orders

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  1. 1.Struck out both the appeal and the application with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure Rules 2010Order 42 Rule 6
  • Civil Procedure Rules 2010Order 51
  • High Court (Practice & Procedure Rules)Rule 3(1) & (2)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Ltd v West End Distributors
    [1969] EA 696
  • Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others
    (2019) eKLR
  • Republic v Registrar of Societies - Kenya & 2 others Ex-Parte Moses Kirima & 2 others
    [2017] eKLR
  • Thika Min Hydro Co. Ltd v Josphat Karu Ndwiga
    (2013) eKLR
On appeal from
Chief Magistrate's Court at Nairobi (Milimani)
Milimani MCCC/E2567/2023 Blue Heart International Trust v Jael Risper Nyadimo
Jurisdiction invoked
Sections 3A, 6 and 7 of the Civil Procedure Act (Act No. 21 of 2010) invoked on the preliminary objection; appeal against a ruling of the Chief Magistrate's Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Blue Heart International Trust v Nyadimo (Environment and Land Appeal E019 of 2023) [2024] KEELC 702 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/702/eng@2024-02-13

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