Golden Century Ltd v Sciborski

Plainti ’s submissions 4. Counsel submitted that the Defendant had led a similar Preliminary Objection before which raised the same issue of sub judice to HCCOMM 298 of 2025. He submitted that the issues in this matter and in the appeals were not the same being that the appeals were arising out of the high court enforcing an arbitration award which found the Defendant to be in breach of his contractual obligations whereas this suit seeks the Defendant be evicted from the suit property for being a trespasser who has refused to vacate the suit property. 5. Counsel submitted that while the two matters relate to the same property, the causes of action are completely dierent. Analysis and Determination 6. Having considered the Notice of Preliminary Objection and the submissions herein the only issue for determination is whether the Notice of Preliminary Objection dated 18th September 2026 is merited 7. The notice of Preliminary Objection is founded on the notion that the suit is improperly before this court as it lacks jurisdiction to entertain the same. It goes without saying that without the requisite jurisdiction a court of law down its tools meaning that the objection, if successful, is capable of nally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. Jurisdiction is the power of the court to determine a matter. Jurisdiction is everything, and a court must rst be satised that it has the jurisdiction to determine a matter before embarking on determining the same. Jurisdiction is conferred by the Constitution or statute or both and a court cannot arrogate itself jurisdiction it does not have. 8. In the case of Owners of the Motor Vessel “Lilian S” -Vs- Caltex Oil (Kenya) Ltd (1989), the court stated as follows; Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…..where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 9. The Defendant argues that by dint of Section 6 of the Civil procedure Act the trial court lacks the jurisdiction to try the dispute herein since the issues herein are the same issues in Civil appeal No E368 of 2024 and Civil appeal No E661 of 2024. I have noted that the said appeals as pointed by the Plainti arise out of the Defendant’s suit being HCCOMM 298 OF 2025 dated 24th April 2025. 10. This court in its ruling delivered on the 7th May 2026 dealt with a similar notice of Preliminary Objection led by the Defendant dated 16th October 2025 which was anchored on the doctrine of sub judice in relation to HCCOMM 298 OF 2025.The said ruling dismissed the notice of Preliminary Objection indicating that the two suits being this suit and the high court did not touch on the same matters in issue despite dealing with the same subject matter and that a determination on this matter would not aect a determination on the high court matter. 11. From the foregoing the Defendant’s matter proceeded and a determination was made and hence the Defendant pursued the appeals in question that are pending. I hold the view that the ruling as quoted above gave a conclusive nding that the doctrine of sub judice does not apply and the same will apply to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5657/eng@2026-09-24 2

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the matters led on appeal as they still address the matter in the high court that touched on a completely dierent issue. The said ruling at paragraph 15 indicated as below “ From the above analysis however, there can be no doubt that the matters in issue are totally dierent. That a determination on the high court matter would not render this instant suit res judicata as the issues raised in this suit will not have been conclusively dealt with to conclusion in the high court matter. Accordingly, this instant suit and the application herein cannot be said to be sub-judice.’’ 12. The issue of sub judice was considered in the case of Republic -Vs- Paul Kihara Kariuki, AG & 2 others, Ex parte Law Society of Kenya [2020] eKLR where the court applied the principles of sub judice in a case involving the Law Society of Kenya (LSK) and stated that it mattered not that the earlier suit was led by the Branch of LSK while the current suit was led by the main body. The court stated as follows: -Paraphrasing what I said in the above case, the key words in applying sub judice rule is that “the matter in issue is directly and substantially in issue in the previously instituted suit." The test for applicability of the sub judice rule is whether on a nal decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. As concluded earlier, the answer to this question is a resounding yes. However, when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit or suits. 13. I will therefore not belabour this argument and still hold the same thoughts as in the ruling of 7th May 2026. Final Disposition The upshot of the above is that i. That the Notice of Preliminary Objection dated 18th September 2026 is not merited and is hereby dismissed. ii. Costs be awarded to Plainti. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH DAY OF SEPTEMBER, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Njoroge for the Plainti/Applicant Mr. Njenga for the Defendant Ms. Mwangi Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5657/eng@2026-09-24 3

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