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

iii. That in the alternative and without prejudice to prayers (1) & (2) this honourable court be pleased to set aside its orders made on 15th October 2024 and issued on 4th December 2024 for lack of proper and/or any service at all. iv. That the costs of this application and the suit be borne by the respondents 2. The application is premised on the grounds on the face of it and the supporting afidavit of Anthony Mwangi Ng’ang’a Advocate sworn on even date. 3. In essence, the Applicant contends that the present suit is fundamentally fiawed, asserting that it ofiends the clear provisions of both sections 6 and 7 of the Civil Procedure Act. 4. The Applicant argues that the proceedings are instituted in a manner inconsistent with the statutory requirements, and that, in consequence, the suit amounts to an abuse of the Court’s process. 5. Further, the Applicant maintains that the matters raised in the suit may have already been determined between the parties, giving rise to the doctrine of res judicata. 6. The application is opposed by the Respondent through the grounds of opposition and the replying afidavit of Patrick Njwagi Mbugua, sworn on 14th July 2025. 7. In the opposition, the Respondent challenges the Applicant’s contentions that the suit ofiends sections 6 and 7 of the Civil Procedure Act and pray that the application be dismissed with costs. 8. The application was canvassed by way of written submissions duly filed by the respective parties. Issues for Determination 9. Having examined the application, the afidavits, and the submissions of counsel, and the relevant authorities, the following issues emerge for determination: i. Whether the present suit is barred under Section 6 of the Civil Procedure Act ii. Whether the suit is res-judicata iii. Whether the suit ought to be struck-ofi Analysis and Determination 10. The first issue for determination is whether the present suit ofiends Section 6 of the Civil Procedure Act. 11. That provision embodies the doctrine of sub judice and is intended to prevent courts of concurrent jurisdiction from simultaneously entertaining parallel proceedings involving the same parties and the same subject matter. 12. Section 6 of the Civil Procedure Act provides: “ 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/320/eng@2026-01-29 2

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13. The rationale underlying this provision is rooted in judicial economy and the orderly administration of justice. It seeks to avert the risk of confiicting decisions, to protect parties from vexatious multiplicity of proceedings, and to preserve the dignity and coherence of the judicial process. 14. A party who invokes Section 6 therefore bears the burden of demonstrating the existence of an earlier suit, the identity of the matters in issue, the sameness of parties or their privies, and the pendency of the earlier proceedings before a court of competent jurisdiction. 15. The Applicant submits that the Plaintifis/ Respondent filed two similar cases first: Thika CM ELC No. E050 of 2024: Patrick Njwagi Mbugua, Elizabeth Wangoi Mburu and Rosemary Wanjiru Ndegwa -vs- Heritage Bistro and Anthony Ng’ang’a Mwangi t/a Ng’ang’a Munene & Co. Advocates where the Honourable court found that the issues raised in the suit were res sub judice and an abuse of the court process. The court ultimately struck out the suit. 16. The Applicant further avers that the Plaintifis/Respondents also filed a similar case in Kiambu High Court Civil Case No. E038 of 2023: Irene Wanjiku Murari & Anor -vs- Rosemary Wanjiru Ndegwa, Patrick Njagwi Mbugua, Elizabeth Wangoi Mburu, Michael Kinyua Gachamba, Edward Njagi Muriithi, Kinyua Mwangi, Heritage Bistro and Anthony Ng’ang’a. 17. The Respondents do not dispute the existence abovementioned suits. They contend that Thika CM ELC No. E050 of 2024 was stayed pending the determination of the matter in Kiambu High Court Civil Case No. E038 of 2023. 18. Section 6 of the Civil Procedure Act refiects the long-standing common law principle that once a competent court has been seized of a matter directly and substantially in issue between the same parties, another court should not proceed with a duplicate suit, lest confiicting decisions issue and litigants be subjected to vexatious litigation. 19. I have taken the time to examine the Honourable magistrate’s decision in Thika CM ELC No. E050 of 2024. The suit was struck out. 20. The decision in Thika CM ELC No. E050 of 2024 decision was not made lightly. It was grounded in the finding that the matter before the Magistrates’ Court was directly and substantially in issue in a previously instituted suit (Kiambu High Court Civil Case No. E038 of 2023) before a court of competent jurisdiction, and therefore ofiended the doctrine of sub judice. The ruling stands as a judicial reminder that litigation is not a game of chance to be played in multiple fora, but a solemn process governed by order, restraint, and respect for the law. 21. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR extensively addressed the doctrine of sub judice as follows: “ The term ‘sub judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing confiicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/320/eng@2026-01-29 3

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pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 22. Applying these principles to the present matter, the record discloses a troubling litigation history. The Respondent previously instituted proceedings in the High Court and thereafter in the Chief Magistrates’ Court, the latter having been struck out on account of being res sub judice in light of the earlier High Court suit. 23. Undeterred, the Respondent has now approached this Court with a suit founded on substantially the same subject matter and between the same parties. The Respondent now submits that this is the only court empowered to hear and determine the matter raised in the plaint. 24. Having examined the evidence before court, the pattern of serial litigation by the Respondents cannot be viewed as inadvertent. It bears the hallmarks of forum shopping. 25. In these circumstances, permitting the present suit to proceed would not only undermine the authority of prior judicial determinations, but would also sanction an abuse of the Court’s process. 26. This Court is satisfied that the statutory threshold for sub judice has been met. To permit the suit to proceed would be to countenance multiplicity of proceedings, invite confiicting determinations, and erode the discipline that Section 6 was enacted to preserve. 27. It bears emphasis that the Court views the practice of forum shopping with stern disapproval. Litigation is a solemn instrument of justice, not a strategy for tactical advantage. The multiplication of suits over the same subject matter, whether in difierent courts or before difierent tribunals, undermines the authority of the judiciary, burdens litigants and the public, and corrodes confidence in the administration of justice. 28. Parties are reminded that the law disfavors serial litigation and will not countenance manoeuvres designed to exploit procedural loopholes or to secure forum advantage. Courts remain vigilant against such conduct. 29. Accordingly, having found that the present suit is sub judice under Section 6 of the Civil Procedure Act, it is unnecessary for the Court to consider the alternative issues raised by the Applicant. The statutory threshold has been met, and the proceedings cannot be allowed to continue without undermining the orderly administration of justice. 30. In view of the foregoing, the application dated 4th June 2025 succeeds. 31. In the premises, the suit filed by the Respondent is hereby struck out with costs. It is so Ordered. DATED, SIGNED AND DELIVERED, AT THIKA THIS 29TH DAY OF JANUARY, 2026, ...................................... J. M. ONYANGO JUDGE In the presence of: Ms Maina for Mr. Ng’ang’a for the 1st & 2nd Defendants/ Applicants Mr Kianda for the 1st and 2nd Plaintifis Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/320/eng@2026-01-29 4

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