ARC Packaging Limited & another v Sundries Bargains (Nairobi) Limited & another (Environment & Land Case E344 of 2022) [2025] KEELC 942 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a tenancy suit because the same dispute was already before the Rent Tribunal, and cheaper, earlier filings win.
What this practically means
#Executive summary
#Key legal issues
#Whether res sub judice constitutes a pure point of law capable of being raised by preliminary objection
Yes - the court merely compares undisputed proceedings; no contested facts are ascertained, so the objection is competent
The court accepted that while determining sub judice may sometimes require examining pleadings, here both parties annexed and conceded the BPRT pleadings, so the court was only comparing undisputed proceedings. Relying on John Florence Maritime Services, the doctrine may be raised via preliminary objection. Jurisdiction is a pure point of law under Mukisa Biscuits.
Whether the suit is res sub judice BPRT E863 of 2022
Yes - same subject matter, same parties or those claiming under them, earlier Tribunal suit pending before a competent forum
The Tribunal reference was instituted on 26th September 2022, before this suit of 11th October 2022. Both arise from the same tenancy dispute over L.R 336/1257 between the 1st Plaintiff and 1st Defendant. Though the 2nd Plaintiff and 2nd Defendant were not named in the Reference, they are mentioned therein and intrinsically connected; adding parties does not alter the suit's pith and substance.
Whether this court has jurisdiction over the dispute
No - the dispute concerns a controlled tenancy within the exclusive jurisdiction of the BPRT under Section 12 of Cap. 301
The ELC is established under Article 162(2)(b) and the ELC Act, but the parties were in an undisputed controlled tenancy (shop, period not exceeding 5 years). Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act vests jurisdiction over such disputes in the Tribunal, which may investigate complaints and make orders under Section 12(4).
Legal principles established
#- Res sub judice can be raised by way of preliminary objection without a formal application
- Addition of parties does not defeat res sub judice; the pith and substance of the suit governs
- The 'matter' in Section 6 refers to the subject matter for determination, not the proceeding itself
- The sub judice rule's purpose is to prevent multiplicity of suits and conflicting decisions
Court orders
#- 1.Preliminary Objection dated 8th March, 2024 allowed
- 2.Suit struck out with costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 3 and 13 of the ELC Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gitau v Alhaajar Investment Limited & 2 others (Environment and Land Petition E002 of 2024) [2026] KEELC 3235 (KLR)[2026] KEELC 3235 (KLR)25 May 2026
Cite this brief
#Cite this brief
Caselaw, "ARC Packaging Limited & another v Sundries Bargains (Nairobi) Limited & another (Environment & Land Case E344 of 2022) [2025] KEELC 942 (KLR)", Case Analysis (2025). ELC Suit of 2022 (Plaint dated 18th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/942/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.