Ngungi & another v Kanyi & 5 others (Environment and Land Judicial Review Case E073 of 2025) [2026] KEELC 5193 (KLR)

a) THAT this honourable court be pleased to stay the proceedings in this instant suit instituted by the Ex-parte Applicants on grounds of sub judice. b) Costs of the Application. 2. The application was premised on grounds as in the supporting of Boniface Waweru.He deponed that the suit was defective as it offended the provisions of Section 6 of the Civil Procedure Act by being sub judice to ELC OS Cause 029 of 2025 and ELCC No 226 of 2025. 3. That this court therefore lacks the jurisdiction to entertain this suit 4. The Ex-parte Applicants opposed the application in a replying affidavit sworn by Joel Kanyi Kamau the 1 st Ex-parte Applicant. He deponed that the matters being raised by the Applicant did not make this suit sub judice as the issues in the two matters were totally different from the issue in this matter. That ELC No 226 of 2025 the cause of action was trespass, in ELCOS E029 of 2025 the cause of action was adverse possession whereas in this matter the Ex-parte Applicants are seeking to challenge the decision of the Respondents dated 7th August 2025 that allowed for the demolition of structures on the property. 5. The application was canvassed by way of written submissions with the Ex-parte Applicant filing submissions dated 9 th July 2026. ELCLJR E073 OF 2025 R 2

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The Applicant s have not filed any submissions in support of the notice of motion application. Ex-parte Applicant ’s submissions 6. The Ex-parte Applicants submitted that for the doctrine of sub judice to apply, it must be demonstrated that there are two or more suits involving the same subject matter; that the earlier suit was instituted before the later one; that both suits are pending before courts of competent jurisdiction; and that they are between the same parties or their representatives litigating under the same title. 7. Counsel further submitted as in the replying affidavit that the matters ELCOS E029 of 2025 and ELC No 226 of 2025 raised different cause of actions and the doctrine of sub judice cannot suffice. That the purpose of this judicial review matter was to challenge the decision of an administrative body which makes it an oversight process by the courts over the administrative bodies whereas the other two matters were in regards to title over Nairobi/block/221/1430 and that the legal principles governing this JR proceedings are different from the principles that will be used in ELCOS E029 of 2025 and ELC No 226 of 2025. Analysis and determination 8. Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the instant Judicial Review proceedings are sub ELCLJR E073 OF 2025 R 3

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judice within the meaning of Section 6 of the Civil Procedure Act, or under the Court’s inherent jurisdiction. 9. Section 6 of the Civil Procedure Act bars a court from proceeding with a suit in issue is directly and substantially in issue in a previously instituted suit between the same parties pending before a court of competent jurisdiction. The Supreme Court in Kenya National Commission on Human Rights Vs Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR (Supreme Court of Kenya, Petition No. 1 of 2017) explained that the purpose of the sub judice rule is to prevent parallel litigation over the same subject matter and to avoid conflicting decisions by courts of competent jurisdiction. 10. The Court of Appeal in Abdulkadir A. Khalif Vs Principal Secretary Ministry of Lands & Physical Planning & 4 Others; National Land Commission & Another (Interested Parties) [2020] eKLR (Court of Appeal at Nairobi further clarified that the applicable test includes whether a final decision in the earlier suit would operate as res judicata in the subsequent proceedings. 11. The Ex-parte Applicants contends that ELCOS E029 of 2025 and ELC No 226 of 2025 challenge the issue of title whereas this cause is confined to the legality and procedural propriety of the decision-making ELCLJR E073 OF 2025 process that R led to the Respondents 4

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demolishing structures and stop further construction by the Exparte Applicants on the suit property. It is settled that sub judice is determined by substance rather than form, as held in Thiba Min. Hydro Co. Ltd Vs Josphat Karu Ndwiga [2013] eKLR (High Court of Kenya). 12. A perusal of the pleadings shows that the judicial review proceedings and the proceedings in ELC No 226 of 2025 ELCOS E029 of 2025 and raise totally different issues and seek different remedies.Whereas in ELCOS E029 of 2025 and ELC No 226 of 2025 the Ex-parte Applicant s seek for proprietary rights and declarations that the transfer and registration of the property in the name of other third parties are irregular ,in this proceedings the Ex-parte Applicants seek orders of certiorari, prohibition, and mandamus directed at the decision of 7th August 2025 that gave effect to demolition orders of structures on the suit property and hindering any further construction by the Exparte Applicants on the property. 13. In addition, therefore I do not see how the issues substantially overlap. A determination by this court upholding or quashing the impugned decision of 7th August 2025 would not directly affect the determination of the issues raised in ELCOS E029 of 2025 and ELC No 226 of 2025 which core issues are on ownership to the suit property. Final disposition ELCLJR E073 OF 2025 R 5

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Accordingly, I make the following orders; i. The Notice of Motion application dated 7 th October ,2025 is hereby dismissed for lack of merit. ii. Costs be in the cause. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 6th day of August, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Kimathi N/A for the Applicant for the Respondent Ms. Mwangi Court Assistant ELCLJR E073 OF 2025 R 6

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