Haji Mbarak Taisir v Defendants
The bottom line
#A Mombasa court struck out a landowner's injunction suit because the same dispute was already pending in another case, awarding costs against him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the matter is sub judice under Section 6 of the Civil Procedure Act given the pending ELC Pet No. E001 of 2024
- 2.Whether a temporary injunction should issue restraining the Defendants from harassing, interfering with, demolishing or evicting occupants of Mombasa/Mwembelegeza/1417
Key legal issues
#Whether this suit is sub judice in view of the pending ELC Pet No. E001 of 2024
The suit is sub judice and was struck off with costs
Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The parties and subject matter in the petition and this suit substantially overlap; a determination of either would render the other spent. The plaintiff was directed to pursue the pending petition.
Whether the plaintiff was entitled to a temporary injunction over Mombasa/Mwembelegeza/1417
The injunction was not considered on its merits because the suit was struck out as sub judice
Although the application sought injunctive relief under Order 40 of the Civil Procedure Rules, the court determined the preliminary issue of sub judice first and found the entire suit barred, striking it out with costs without considering the merits of the injunction.
Legal principles established
#- The sub judice test under Section 6 of the Civil Procedure Act turns on whether the matters in issue, not the prayers sought, are directly and substantially the same
- The rationale of the sub judice rule is to prevent conflicting orders emanating from the same subject matter
Court orders
#- 1.The suit is struck off with costs
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rules 1, 2, 3(3) and 4 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21
Relief refused
#Temporary injunction restraining the Defendants from harassing, interfering with, demolishing, evacuating occupants of Mombasa/Mwembelegeza/1417
The court found the matter sub judice under Section 6 of the Civil Procedure Act as the same matters were directly and substantially in issue in the pending ELC Pet No. E001 of 2024 between the same parties
Costs
Suit struck off with costs (costs awarded against the plaintiff to the Defendants)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find this matter is sub judice and is struck ofi with costs. It is so ordered.
However, the principle of sub judice does not talk about the ‘‘prayers sought’’ but rather ‘‘the matter in issue’’ I find that the matters in issue in the suits are substantially the same.
No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties
Issues in the judgment
#Judgment does not state the case number or title of this suit or the names of the Defendants; the plaintiff's own name is given only through the supporting affidavit
Internal inconsistency in dates: grounds state eviction notice dated 4th March 2024 while narrative states letter dated 4th April 2024
The application is described as seeking relief for the Plaintiff, yet the supporting affidavit deponent is called the 'Applicant' while counsel addressed the court on the 'Respondent's' submissions, with role labels used inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haji Mbarak Taisir v Defendants", Case Analysis (2024). Not stated in judgment (application dated 6th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4697/eng@2024-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.