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ELCPartially AllowedNotice of Motion application dated 4th June 2025 (ruling within suit before the Environment and Land Court, Thika)· [2026] KEELC 320 (KLR)

Mbugua & 2 others v Heritage Bistro Limited & another (Environment and Land Case E116 of 2024) [2026] KEELC 320 (KLR)

Environment and Land Court
29 January 2026
1,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicants, Heritage Bistro and Anthony Ng'ang'a Mwangi t/a Ng'ang'a Munene & Co. Advocates, moved the court by Notice of Motion dated 4th June 2025 seeking striking out of the respondents' suit on the ground that it offended Section 6 of the Civil Procedure Act, a finding of res judicata under Section 7, and in the alternative setting aside of orders made on 15th October 2024 and issued on 4th December 2024 for want of service, with costs. The respondents opposed through grounds of opposition and a replying affidavit of Patrick Njwagi Mbugua sworn 14th July 2025, contending that Thika CM ELC No. E050 of 2024 had merely been stayed pending the Kiambu High Court suit, and the matter was canvassed by written submissions. The court framed three issues: sub judice under Section 6, res judicata, and striking out. Applying the Supreme Court's exposition in Kenya National Commission on Human Rights v Attorney General, it found the respondents had serially litigated the same subject matter in the High Court and the magistrates' court - the latter having been struck out as res sub judice - and that the present suit bore the hallmarks of forum shopping. The statutory threshold for sub judice was met; the alternative issues were not reached. The application dated 4th June 2025 succeeded, and the suit was struck out with costs. Delivered at Thika on 29th January 2026 by J. M. Onyango, Judge.

Key legal issues

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01

Whether the suit offended Section 6 of the Civil Procedure Act (res sub judice)

Holding

Yes. The suit was founded on substantially the same subject matter between the same parties as the earlier Kiambu High Court suit, so the statutory threshold for sub judice was met.

Reasoning

Section 6 embodies the sub judice doctrine preventing courts of concurrent jurisdiction from entertaining parallel proceedings between the same parties over the same subject matter. The record disclosed that the respondents had previously litigated the same matter in the High Court (Kiambu HC Civil Case No. E038 of 2023) and in Thika CM ELC No. E050 of 2024, which was struck out as res sub judice. Filing the present suit constituted forum shopping and an abuse of process.

p. 4
02

Whether the suit was res judicata and whether the earlier orders should be set aside

Holding

Not determined; unnecessary once the sub judice bar was established.

Reasoning

The court found the Section 6 threshold met and expressly declined to consider the alternative grounds of res judicata and setting aside of prior orders, since the suit could not continue in any event.

p. 4

Legal principles established

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  • The party invoking Section 6 bears the burden of establishing an earlier suit, identity of matters in issue, sameness of parties or privies, and pendency before a competent court.
  • Where two suits over the same subject matter are between the same parties, the later-filed suit ought to be stayed pending determination of the earlier suit.

Court orders

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  1. 1.The application dated 4th June 2025 succeeds
  2. 2.The suit filed by the Respondent is struck out with costs
  3. 3.Costs of the suit to the Applicants

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7

Cases cited (1)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Section 6 of the Civil Procedure Act (res sub judice striking-out jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbugua & 2 others v Heritage Bistro Limited & another (Environment and Land Case E116 of 2024) [2026] KEELC 320 (KLR)", Case Analysis (2026). Notice of Motion application dated 4th June 2025 (ruling within suit before the Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/320/eng@2026-01-29

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