Lesirat Nkuya Olowasa v Carey Francis Metropolitan School

2. The Plaintiff’s application is premised on the grounds that he is the registered proprietor of parcel Kajiado/Kaputiei North/50557 which the Defendant has trespassed upon and failed to vacate despite several eviction notices issued from the year 2023. The Plaintiff thus seeks summary judgment against the Defendant on the basis that the Defendant’s presence on the suit property is unlawful. 3. The Defendant’s application and Replying Affidavit is premised on the grounds that this suit violates Section 6 of the Civil Procedure Act as the issues for determination are directly and substantially similar to ELC No. E056 of 2023 which is before Mwangi J. for determination of ownership of parcel Kajiado/Kaputiei North/50557. It is therefore necessary to stay these proceedings awaiting determination of the ownership dispute so as to eliminate the risk of the two courts issuing adverse or conflicting orders. The application is opposed by the Plaintiff. 4. The applications were canvassed by way of written submissions. RULING ELCLC NO. E155 OF 2025 Page 2 of 12

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5. Counsel submits that the Plaintiff is the registered owner of parcel Kajiado/Kaputiei North/550557 which the Defendant has trespassed upon and has declined to vacate despite being issued with eviction notices as set out under Section 152E Land Act and Regulation 65 Land Registration Regulations. That the Defendants have not responded to notices or sought relief from the Court. 6. Counsel further submits that once a Defendant is served with an application for summary judgement, they ought to prove that they should be given leave to defend the suit, failing which the Court is empowered to enter summary Judgement. Counsel refers the court to the case of Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR) and Continental Butchery Ltd v Nthiwa [1978] KLR. 7. On the issue of sub judice, counsel submits that the suit herein and ELC No. E056 of 2023 are different and that the Defendant has not proved its interest in ELC No. E056 of 2023 which is between Lorna Lasoi and Emily Nasoita and the Plaintiff herein. Further, the said suit relates to parcel Kajiado/Kaputiei North/23315, not RULING ELCLC NO. E155 OF 2025 Page 3 of 12

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Kajiado/Kaputiei North/50557. Reference is made to Kenya Ports Authority v William Odhiambo Ramogi & 8 Others [2019] eKLR. 8. Counsel for the Defendant submits that a summary judgement should only be given in straightforward matters and that a party should not be denied an opportunity to try its case citing Advocates v Harit Sharma Sheth T/A Charania Harit Sheth [2014] eKLR, Continental Butchery Limited v Nthiwa (1978) KECA 28 (KLR) and Job Kilachi v Nation Media 2 Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) KECA 846 (KLR). 9. On whether this suit is sub judice, while making reference to Kenya National Human Rights Commission v AG & 17 others [2020] KESC 54 (KLR) counsel submits that parcel Kajiado/Kaputiei North/50557 is the subject of contention in ELC No. E056 of 2023 which the Defendant alleges is the genesis of its possession of the suit property. As such, before this Court issues eviction orders, the question of ownership ought to be determined arguing that while a title deed is prima facie evidence of ownership, it is not conclusive proof when such ownership RULING ELCLC NO. E155 OF 2025 Page 4 of 12

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is challenged. As such, this suit should be stayed to await the outcome of ELC No. E056 of 2023. 10. Having considered the applications, affidavit evidence and rival submissions, the Court the twin issues for determination are:  Whether the Plaintiff’s prayer for summary judgement against the Defendant should be allowed and  Whether this suit is sub judice. 11. The Plaintiff seeks summary Judgement on the basis that the Defendant failed to file a defence. While Order 36 rule 1(b) of the Civil Procedure Rules provides for summary Judgement for recovery of land by a landlord from a tenant whose term has expired, the Defendant has a right to show cause why he should have leave to defend the suit in accordance to Order 36 rule 2 Civil Procedure Rules. On grant of summary judgement, the Court of Appeal in Postal Corporation of Kenya v I.T.Inamdar & 2 others [2004] KECA 139 (KLR) held: “… The law on summary judgment procedure has been settled for many years now. It was held as early as in 1952 in the case of Kundanlal Restaurant RULING ELCLC NO. E155 OF 2025 Page 5 of 12

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vs. Devshi & Company Limited [1952] 19 EA 77 and followed in the Court of Appeal for Eastern Africa in the case of Souza Fiqueredo & Co. vs. Moorings Hotel [1959] EA 425, that if the defendant shows a bona fide triable issue he must be allowed to defend without conditions.” 12. The courts have been reluctant to terminate suits unless they are hopeless, clearly frivolous and an abuse of the Court process. See DT Dobie & Company (Kenya) Ltd v Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR): “… This summary jurisdiction of the court was never intended to be exercised by a minute and a protracted examination of documents and the facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent RULING ELCLC NO. E155 OF 2025 Page 6 of 12

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power of the court and not a proper exercise of that power." per Danckwerts L.J. ibi at p. 1244."The power to strike out any pleading or any part of a pleading under this rule is not mandatory, but discretionary having permissive jurisdiction regard circumstances to the relating and to be quality to confers exercised and the a all the offending pleading." 13. An eviction order necessarily presupposes an undisputed right to exclusive possession. It is however on record that the Plaintiffs ownership is in dispute though from a different party. The Defendant has also raised the issue of sub judice. The Court finds that there are triable issues which require a hearing. Accordingly, the Court finds that the relief for summary Judgement is not merited. 14. The second issue is whether this suit is sub judice and should be stayed pending the hearing and determination of ELC E056 of 2023. 15. Section 6 of the Civil Procedure Act provides that no court shall proceed with the trial of a suit where the RULING ELCLC NO. E155 OF 2025 Page 7 of 12

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matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties 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. 16. The defendant seeks stay of these proceedings on grounds that the subject matter and parties in this suit are similar to ELC E056 of 2023. The defendant argues that ELC E056 of 2023 seeks to determine the question of ownership of parcel Kajiado/Kaputiei North/550557 (the same subject matter in this suit) between the Plaintiff herein and his siblings. The Plaintiff has contested this claim arguing that the Defendant has no interest in suit ELC E056 of 2023 and the cause of action is not similar. 17. To determine whether the doctrine of sub judice is applicable in these suits, the Court has perused ELC E056 of 2023. The Plaintiffs therein who state they are siblings with the Plaintiff in this suit claim that the Plaintiff illegally registered their father’s land in his sole name and has been disposing part of the land without their consent. However, they claim that parcels Kajiado/Kapitiei North/12151, 50556, 50557 and 107609 which are still RULING ELCLC NO. E155 OF 2025 Page 8 of 12

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registered in the Plaintiffs name should be held in Trust for them. They thus seek cancellation of the registration of the titles. They also seek an injunction against interference of the said parcels by the Plaintiff herein. 18. Although the Plaintiff submits that ELC No. E056 of 2023 concerns parcel No. Kajiado/Kaputiei North/23315, the pleadings reveal that the dispute include parcel No. Kajiado/Kaputiei North/50557 which is the subject matter in this suit. The Court thus finds that the central issue in both suits is substantially the same, being the proprietary interest over parcel No. Kajiado/Kaputiei North/50557. 19. The Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) has also pronounced itself on the issue of sub judice holding that: 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 RULING ELCLC NO. E155 OF 2025 Page 9 of 12

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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 conflicting 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 pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives. 20. I therefore find that the issue of ownership which is central to the eviction dispute ought to be determined first. Once the issue is resolved, any consequential claim RULING ELCLC NO. E155 OF 2025 Page 10 of 12

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founded on trespass or eviction can be determined without risk of conflicting Judgments. I also note that it is the policy of this court that cases involving the same parties or the same property be handled by one court. 21. Consequently, the Court makes orders that: a. The Plaintiff’s Notice of Motion dated 19th December 2025 seeking summary judgment is dismissed. b. The Defendant’s Notice of Motion dated 3rd February 2026 is hereby allowed and further proceedings in this suit are stayed pending the hearing and determination of Kajiado ELC Case No. E056 of 2023, or until further orders or variation by that Court. The file is to be placed before Justice MD Mwangi. c. Costs of these applications shall abide the outcome of the suit. Dated, Signed and Delivered virtually at Kajiado this 24th September 2026. JUDY OMANGE RULING ELCLC NO. E155 OF 2025 Page 11 of 12

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JUDGE IN THE PRESENCE OF: Mr. Githuka for Plaintiff. Ms. Achola for Defendant. Peter – Court Assistant. RULING ELCLC NO. E155 OF 2025 Page 12 of 12

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