Langat v Mutai & another

2. Parties canvassed the notice of preliminary objection by way of written submissions. Respondent’s submissions 3. The Respondents relied on section 6 of the Civil Procedure Act, arguing that the preliminary objection is properly raised since the present suit is sub judice, meaning the parties, subject matter, and reliefs mirror those in Nairobi ELRC Petition No. E002 of 2025. The Respondents relied on the cases of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR); the courts emphasize that a preliminary objection must rest on a pure point of law. 4. The Respondents further rely on Kenya National Commission on Human Rights v Attorney General & 2 others [2020] KEHC 2155 (KLR) and Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] KEHC 2017 (KLR) to demonstrate that the Claimant’s duplicative ling amounts to forum shopping and violates judicial integrity. 5. The Respondents submitted that the Petition scheduled for mention on 26th February 2025 was never prosecuted and that claims of withdrawal are false. The suit is described as scandalous, frivolous, and vexatious under DT Dobie & Company (Kenya) Limited v Muchina & Another [1980] KECA 3 (KLR), and as an abuse of court process per Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 others [2001] KECA 242 (KLR), for wasting judicial time and risking conicting decisions. 6. The Respondents pray that the suit be struck out entirely, their preliminary objection upheld, and costs awarded pursuant to section 27(1) of the Civil Procedure Act, Cap 21 Laws of Kenya. Claimant’s submissions 7. The Claimant submitted that the Respondents’ Preliminary Objection dated 27th April 2026 is incurably defective, both procedurally and substantively. The Claimant relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(supra) to emphasize that a valid preliminary objection must raise a pure point of law, not one dependent on contested facts. The doctrine of sub judice under section 6 of the Civil Procedure Act requires factual inquiry into the existence of another pending suit, the parties, and the issues, making it unsuitable for determination at the preliminary stage. This position is reinforced by Independent Electoral and Boundaries Commission v Cheperenger & 2 Others [2018] KESC 46 (KLR), the Supreme Court in Charo v Mwashetani & 3 others [2014] KESC 41 (KLR) and Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] KESC 23 (KLR), as well as Oraro v Mbaja [2005] KEHC 3182 (KLR), which held that preliminary objection requiring factual investigation are incompetent. Moreover, the alleged Nairobi ELRC Petition No. E002 of 2025 was formally withdrawn on 10th July 2025 before Lady Justice Anna Mwaure, and as armed in Jaber Mohsen Ali & another v Priscillah Boit & another [2014] KEELC 132 (KLR), a withdrawn suit ceases to be pending and cannot ground a sub judice objection. 8. The Claimant further contended that the objection is a reckless abuse of court process intended to delay resolution of her employment dispute, citing the case of DT Dobie & Company (Kenya) Ltd v Muchina & Another [1980] KECA 3 (KLR), and therefore prays that it be dismissed with costs and the matter proceed to full hearing on the merits. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2241/eng@2026-07-31 2

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Analysis and determination 9. The court has considered the notice of Preliminary objection and submissions on record; the issue for determination is whether the case in Nairobi ELRC Petition No. E002 of 2025 is sub-judice to ELRC E008 /2026 and so should the case be dismissed? 10. In Independent Electoral & Boundaries Commission v Cheperenger & 2 Others(supra), the Supreme Court cited the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA as highlighted in the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR [paragraph 31] as follows: “ To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696: ‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.” 11. Still in Independent Electoral & Boundaries Commission v Cheperenger & 2 others(supra) the Supreme Court cited the case of Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Civil Application No. 23 of 2014, [2014] eKLR; and in Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others(Supra), in which the Court further stated [paragraph 15] as follows: “ Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satised that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 12. Section 6 of the Civil Procedure Act provides as follows: “ ….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 are or any of them claim litigating under the same title, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.” 13. In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others [2020] KESC 54 (KLR), the Supreme Court referred to the Black’s Law Dictionary 9th Edition denition of sub-judice as follows: “ The term ‘sub-judice’ is dened 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 ling 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 conicting decisions over the same subject matter. This means that when two or more cases are led between the same parties on the same subject https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2241/eng@2026-07-31 3

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matter before courts with jurisdiction, the matter that is led 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.” 14. In Republic V Paul Kihara Kariuki & 2 others; Ex parte Law Society of Kenya [2020] KEHC 3289(KLR) Justice Mativo (as he was then) stated as follows: “ …there exists the concept of sub judice which in Latin means “under Judgment”. It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the rst suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding, and such an order can be made at any stage.” Mativo J. (as he then was) proceeded to strike out the suit holding that the existence of another suit would render issues in subsequent suit res-judicata.” 15. In this instant case, the Respondents contend that the Claimant’s suit is sub judice under section 6 of the Civil Procedure Act, as the issues are already pending in Nairobi ELRC Petition No. E002 of 2025, involving the same parties, subject matter, and reliefs. The Respondents argue that the Petition scheduled for mention on 26th February 2025 was never prosecuted and that assertions of withdrawal are unfounded. The Respondents therefore characterize the suit as scandalous, frivolous, and vexatious, duplicating pending claims, seeking identical remedies, and exposing them to duplicity of litigation. The Claimant, however, maintains that Nairobi ELRC Petition No. E002 of 2025 was formally withdrawn on 10th July 2025 in the presence of the Respondents’ counsel, and thus cannot be deemed a pending suit. 16. The court nds that the existence of Nairobi ELRC Petition No. E002 of 2025 as a live matter is not established, and therefore it cannot be invoked as a pending suit for purposes of sub judice. Upon reviewing the CTS records, the Court conrmed that the case of Hon. Brian Cheruiyot & 5 Others v Governor of Kericho & Another was transferred from Nairobi to Kericho and consolidated with Petition No. E014 of 2024. The CTS further reects that on 10th July 2025, Petition No. E014 of 2024 was marked as closed. 17. Consequently, Nairobi Petition No. E002 of 2025, having been consolidated with Petition No. E014 of 2024, is no longer alive, and the present suit cannot be said to be sub judice. Under Section 6 of the Civil Procedure Act, *sub judice* applies only where there is a subsisting case parallel to the current proceedings. 18. Having considered the application, the submissions, the applicable law, and the authorities cited, the court holds that the Respondents have not satised the requirements for granting the preliminary objection on grounds of sub judice. The preliminary objection is therefore dismissed. 19. Each party to bear its own costs. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 31ST DAY OF JULY, 2026. ANNA NGIBUINI MWAURE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2241/eng@2026-07-31 4

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Order In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2241/eng@2026-07-31 5

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