Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment (Environment and Land Court suit, Thika)· [2024] KEELC 5415 (KLR)

Gathecha v Mwaura & 3 others (Environment & Land Case 127 of 2022) [2024] KEELC 5415 (KLR)

Environment and Land Court
12 July 2024
1,340 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The 1st and 2nd defendants moved the court by notice of motion dated 13/4/2023 seeking dismissal of the suit as sub judice and an abuse of process, on the ground that the plaintiff had filed Thika CMC E & L Case No 71 of 2022 in August 2022 raising the same cause of action and reliefs. The plaintiff admitted instituting and then withdrawing the Thika suit, explaining that he withdrew it upon realising the Chief Magistrate's Court lacked pecuniary jurisdiction over a claim he valued in the range of Kshs 100,000,000; he exhibited a notice of withdrawal received by the Thika registry on 8/2/2023, which the applicants did not controvert. Framing two issues — whether the suit was sub judice and what order should follow — the court applied Section 6 of the Civil Procedure Act and the Supreme Court's formulation of the sub judice doctrine in the Kenya National Commission on Human Rights case. It held that although the suit was sub judice when filed on 31/10/2022 (the Thika suit was still pending), the earlier suit had been withdrawn before the application was argued, so the present suit no longer offended the doctrine and dismissal was unwarranted. The application was declined, but the plaintiff, who misled the court about the withdrawal date and withheld evidence of service of the notice, was condemned to pay the defendants' advocates costs of the application within 30 days, failing which the suit would stand struck out with costs. The judgment contains conflicting costs figures (Kshs 25,000 and Kshs 30,000).

Key legal issues

#
01

Whether the suit was sub judice under Section 6 of the Civil Procedure Act

Holding

The suit was sub judice when filed (the Thika suit was still pending on 31/10/2022), but by the time the application was heard the earlier suit had been withdrawn on 8/2/2023 and no longer subsisted, so the suit was no longer sub judice

Reasoning

The court applied Section 6 of the Civil Procedure Act and the Supreme Court's four-element test for sub judice. It found no contest that the Thika suit shared the same cause of action, reliefs and parties. However, the plaintiff exhibited a notice of withdrawal received by the Thika registry on 8/2/2023, which the applicants did not controvert. Since the earlier suit no longer subsisted when the application was argued, the doctrine could no longer support dismissal.

p. 3
02

Whether the suit was an abuse of court process warranting dismissal

Holding

The suit was not vexatious or an abuse of process at the time of the application because the plaintiff had withdrawn the earlier suit; the defendants' remedy is costs of the withdrawn suit

Reasoning

The court held the plaintiff's conduct — filing a claim in the Chief Magistrate's Court exceeding its pecuniary jurisdiction — was a 'folly' he remedied by withdrawing the Thika suit in February 2023. Having substantially remedied the breach of the sub judice doctrine, dismissal was not merited; costs were the appropriate sanction.

p. 3
03

Costs of the application

Holding

The plaintiff was to bear costs because he misled the court that the Thika suit was withdrawn before filing the present suit and withheld evidence of when he served the withdrawal notice

Reasoning

The court found the plaintiff misled the court about the date of withdrawal and elected not to produce evidence showing when the withdrawal notice was served. That conduct justified personal cost consequences against the plaintiff, coupled with a default sanction of striking out the suit.

p. 3

Legal principles established

#
  • Where the earlier suit that grounded a sub judice objection has been withdrawn, the later suit ceases to be sub judice and dismissal is not warranted; costs of the withdrawn suit are the remedy
  • When two or more cases are filed between the same parties over the same subject matter, the later suit ought to be stayed pending determination of the earlier suit

Court orders

#
  1. 1.Application dated 13/4/2023 declined on the ground that at the time it was brought the plaintiff had substantially remedied the breach of the sub judice doctrine
  2. 2.Plaintiff to pay the 1st and 2nd defendants' advocates costs of the application, assessed at Kshs 25,000 (stated in paragraph 11) / Kshs 30,000 (stated in paragraph 12), within 30 days
  3. 3.In default of payment, this suit shall stand struck out with costs to the defendants

Authorities

#

Legislation

  • Civil Procedure ActSection 6

Cases cited (1)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties
    [202] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Section 6 of the Civil Procedure Act (sub judice doctrine)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gathecha v Mwaura & 3 others (Environment & Land Case 127 of 2022) [2024] KEELC 5415 (KLR)", Case Analysis (2024). Not stated in the judgment (Environment and Land Court suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5415/eng@2024-07-12

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