Kitelo & 2 others v Tum & 4 others (Environment and Planning Civil Case E002 of 2025) [2025] KEELC 4994 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed both an injunction and a sub-judice objection, confirming a struck-out suit cannot block new litigation.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res sub-judice given Kitale CMCC Land Case No. 110 of 2024
Sub-judice was improperly invoked because the earlier suit had been struck out and was not pending when this suit was filed
Section 6 of the Civil Procedure Act bars later suits only where a earlier suit is pending between the same parties over the same subject matter. The lower court suit was struck out on 2/9/2024 for want of jurisdiction. Reinstatement and review applications afterwards did not revive it, so no suit was pending at the time this suit was filed.
Whether the plaintiffs established a case for a temporary injunction
The injunction application failed on all three Giella grounds, aggravated by non-disclosure and unclean hands
The material facts - the 2008 sale, subsequent sale and transfer, occupation and the charge - were strenuously refuted by all three defendants and the plaintiffs filed no supplementary affidavits. No infringed right was established, any damage was compensable in damages, and non-disclosure of material facts disentitled them to equitable relief.
Legal principles established
#- A suit struck out ceases to exist and cannot be revived by post-striking-out applications; the doctrine of res sub-judice requires a pending suit
- Elements of res sub-judice under Section 6 of the Civil Procedure Act
- The three Giella conditions for a temporary injunction are applied separately, distinctly and logically
- A party seeking ex-parte equitable relief must make full and frank disclosure and come with clean hands
Court orders
#- 1.The application dated 7/4/2025 seeking striking out of the suit on account of sub-judice is dismissed with costs
- 2.The application dated 25/3/2025 seeking a temporary injunction is dismissed with costs to the respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (interlocutory applications in a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitelo & 2 others v Tum & 4 others (Environment and Planning Civil Case E002 of 2025) [2025] KEELC 4994 (KLR)", Case Analysis (2025). Not stated in the judgment (Environment and Land Court, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4994/eng@2025-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.