Sheria na Haki Human Rights Institute v Noor & 10 others; Ethics and Anti-Corruption Commission & another (Interested Parties) (Constitutional Petition E003 of 2023) [2024] KEELC 4519 (KLR)

Section 6 of the Civil Procedure Act bars a court from trying a matter directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title. The names instructing the Petitioner's advocate are the same as the plaintiffs in the pending originating summons, both suits concern the same suit land, and the earlier suit is at its final stage. The court therefore lacks authority to proceed.

Order 40 Rule 7, Order 45 and Section 80 of the Civil Procedure Act permit discharge or variation of injunction orders in the court's discretion, exercised judiciously. Since the Petition itself is stayed as sub judice, maintaining the status quo order would be without legal foundation, so the 1st Respondent's application substance was granted notwithstanding the fate of that application.

Guided by Munya v Kithinji and related authorities, an applicant for conservatory orders must show an arguable prima facie case, prejudice to the substratum of the petition, and public interest. The Petition, filed in 2023 after the 2022 originating summons by the same parties, raised no prima facie evidence of infringement of Article 40 rights; the issues are already before the ELC in ELC No. 011 of 2022, which is at its final stage.

Under Section 27(1) of the Civil Procedure Act, costs follow the event and the successful party is typically entitled to costs unless compelling reasons exist. Having found for the 1st Respondent on the stay and vacation of Order No. 6, the court exercised its discretion in his favour on both applications.