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6. 2 The costs of this application be provided for. The Plaintifi then filed an application dated 18th January 2022 seeking the following orders; 1. spent 2. That an order does issue consolidating the instant suit with Malindi Environment and Land Case No. 195 of 2018. 3. That the honourable court do make such other orders as it may deem fit, necessary and expedient in the interest of justice. 4. The costs of the application be provided for. Counsel agreed to canvas the application vide written submissions which were duly filed. 3rd Respondent’s Submissions 3 Counsel relied on the sworn afidavit of Samson Charo Lewa a director of the 3rd defendant and submitted that application is res sub judice and does not disclose any claim or allegation against the respondent herein. Further that the suit does not disclose any reasonable cause of action or a justifiable claim against the defendants. 4 Mr Gambo submitted that there is a matter filed by the plaintifi vide a plaint dated 17th October 2018 being ELC NO. 195 of 2018 Ruth Kabibi Kombe –vs- White Unicorn LTD &Kilifi Land Registrar seeking similar orders hence this matter is sub judice. 5 It was counsel’s further submission that vide a Gazette Notice dated 17th July 2017, the National Land Commission found that although the deceased had made a claim to the land, she had nothing to support her claim as the land was originally allocated to Albert Samini who failed to appear for the hearing and the defendant’s predecessors in title Rebecca Florence Kalume & 3 others regularly held the land whereby the embargo on the land was lifted. 6 Counsel relied on Section 6 of the Civil Procedure Act which provides that no court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. 7 Counsel cited the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR where it was held that a litigant has no right to purse pari passu two processes, which will have the same efiect in two courts at the same time with a view of obtaining victory in one of the process or in both. 8 Mr Gambo stated that the Plaintifi/Respondent has filed the present suit approximately three years from the date she filed the previous matter herein which is ongoing hence both suits are pending before courts of competent jurisdiction and are between the same parties and or their representatives. Counsel urged the court to find that this suit is an abuse of court process and strike it out. 9 The plaintifi filed a replying afidavit dated 10th December 2021 and stated that the late Kanze Lewa Keche died while pursuing the title deed of the suit property and admitted that she filed ELC No 195 of 2018 which is still pending. It was her argument that this suit is against more defendants and that the previous suit is against the 3rd defendant and the land Registrar Kilifi. The respondent urged the court to consolidate the two matters as they involve the same subject matter and parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2705/eng@2022-07-12 2

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Analysis and Determination 10 The issues for determination are as to whether the suit is sub judice and an abuse of process and whether this suit should be consolidated with ELC No. 195 of 2018. 11 Section 6 of the Section 6 of the Civil Procedure Act sets out the principle of sub-judice as follows: 6. “No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 12 This doctrine is to prevent parties from filing similar cases involving same parties and subject matters in courts with competent jurisdiction. Parties are not supposed to litigate by instalments and further that they should not be allowed to forum shop for courts. That is why the doctrine prevents courts from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before same or another court with jurisdiction to determine it. The rationale behind sub-judice rule is to prevent situations of having confiicting orders emanating from difierent courts over the same subject matter. This can cause embarrassment to the court. 13 In the case of Kenya National Commission on Human Rights – vs – Attorney General, I.E.B.C., & 16 others [2020] eKLR, the Supreme Court of Kenya stated as follows: …A party that seeks to invoke the doctrine of res sub-judice must therefore establish that: there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives…” 14 In is not disputed that there are two suits where the plaintifi has sued the defendants in respect of the same subject matter. The plaintifi has also admitted that she filed ELC No 195 of 2018 which involves the same subject matter, same parties apart from an additional defendant. The suit which was filed in 2018 is still pending and in order to circumvent this application the plaintifi filed an application for consolidation of these two suits. 15 It would be an abuse of court process to allow for consolidation of a suit which is sub judice, especially where an application invoking the doctrine of sub judice has been filed and is under consideration by the court. 16 In the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Exparte Law Society of Kenya [2020] eKLR (supra) where the court held that: … the issues at hand are crystal clear, namely, whether this suit ofiends the question of sub judice and whether it is an abuse of court process. If the answers are in the afirmative, then consolidation would be impermissible because its application was never meant to cure or cover the doctrine of sub judice or abuse of court process. Put difierently, a plea for consolidation is not permissible in circumstances whereby it is evident it is being used to evade the wrath of the sub judice rule as opposed to serving the settled principles of consolidation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2705/eng@2022-07-12 3

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17 Accordingly, 3rd defendant/applicant’s the application dated 25th November 2021 is hereby allowed as prayed and the plaintifi’s suit is struck out with costs. The plaintifi’s application dated 18th January 2022 for consolidation of the two suits is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT MALINDI THIS 12TH DAY OF JULY, 2022. M.A. ODENY JUDGE NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Ofice of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2705/eng@2022-07-12 4

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