Gathecha v Mwaura & 3 others (Environment & Land Case 127 of 2022) [2024] KEELC 5415 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit was sub judice under Section 6 of the Civil Procedure Act
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(the Thika suit was still pending on 31/10/2022), but by the time the application was heard the earlier suit had been withdrawn on 8/2/2023 and no longer subsisted, so the suit was no longer sub judice
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.
Whether the suit was an abuse of court process warranting dismissal
The suit was not vexatious or an abuse of process at the time of the application because the plaintiff had withdrawn the earlier suit; the defendants' remedy is costs of the withdrawn suit
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.
Costs of the application
The plaintiff was to bear costs because he misled the court that the Thika suit was withdrawn before filing the present suit and withheld evidence of when he served the withdrawal notice
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.
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#- Where the earlier suit that grounded a sub judice objection has been withdrawn, the later suit ceases to be sub judice and dismissal is not warranted; costs of the withdrawn suit are the remedy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.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.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.In default of payment, this suit shall stand struck out with costs to the defendants
- 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.