Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutELC Suit of 2022 (Plaint dated 18th October 2022)· [2025] KEELC 942 (KLR)

ARC Packaging Limited & another v Sundries Bargains (Nairobi) Limited & another (Environment & Land Case E344 of 2022) [2025] KEELC 942 (KLR)

Environment and Land Court
27 February 2025
3,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
The 1st and 2nd Defendants raised a preliminary objection dated 8th March 2024 seeking dismissal of the Plaintiffs' suit on three grounds: lack of jurisdiction, res sub judice vis-à-vis Nairobi BPRT No. E863 of 2022, and abuse of process/forum shopping. The 1st and 2nd Plaintiffs (Arc Packaging Limited as tenant) had sued over a dispute concerning tenancy of L.R 336/1257 (Original Number 336/106/2), seeking declarations, injunctions restraining distress for rent and re-entry, annulment of a termination notice, and damages. The Defendants argued the same issues were pending before the Business Premises Rent Tribunal, where Arc Packaging had filed a Reference on 26th September 2022, before this suit of 11th October 2022. The Plaintiffs contended the objection was incompetent as res sub judice required interrogation of facts. Relying on Mukisa Biscuits, Joho, John Florence Maritime, KNCHR and the Interim Independent Electoral Commission case, the court held the objection competent since it involved comparing undisputed proceedings; that the suit was res sub judice as the two suits involved the same subject matter and parties (or those claiming under them), the addition of parties not altering the pith and substance; and that the dispute over a controlled tenancy fell within the Tribunal's jurisdiction under Section 12 of Cap. 301 rather than the ELC. The court struck out the suit with costs.

Key legal issues

#
01

Whether res sub judice constitutes a pure point of law capable of being raised by preliminary objection

Holding

Yes - the court merely compares undisputed proceedings; no contested facts are ascertained, so the objection is competent

Reasoning

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.

p. 4
02

Whether the suit is res sub judice BPRT E863 of 2022

Holding

Yes - same subject matter, same parties or those claiming under them, earlier Tribunal suit pending before a competent forum

Reasoning

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.

p. 6
03

Whether this court has jurisdiction over the dispute

Holding

No - the dispute concerns a controlled tenancy within the exclusive jurisdiction of the BPRT under Section 12 of Cap. 301

Reasoning

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).

p. 7

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. 1.Preliminary Objection dated 8th March, 2024 allowed
  2. 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.

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.