https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3592

AC Africane Holdings Ltd v Lamuria Properties Ltd & another (Environment and Land Petition E002 of 2026) [2026] KEELC 3592 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3592 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Environment and Land Petition E002 of 2026 LN Mbugua, J June 10, 2026 Between Ac Africane Holdings Limited Petitioner and Lamuria Properties Limited 1st Respondent Airways Auctioneers 2nd Respondent Ruling 1.This suit was filed by way of a petition dated 19.5.2026 where the petitioner identifies itself as the tenant of the respondent. The Petitioner’s complaint is that there is flagrant, active breach of Articles 40 (Protection of Right to Property) and 50(1) (Right to a Fair Hearing) of the Constitution of Kenya, orchestrated by the respondents under the cover of active tenancy litigation in subordinate court case No. ELC/E073/2025. 2.The relieves sought by the petitioner are;“1.1. A declaration that the actions of the respondents in deploying auctioneers to the premises while a civil suit is pending constitute a violation of Article 40 and 50 of the Constitution.2.An Order of Permanent Injunction restraining the respondents from interfering with the petitioner’s quiet possession of the leasehold property.3.Damages for trespass, commercial disruption and constitutional violations.” 3.The petitioners have also filed an application contemporaneously with the petition seeking orders of stay of execution of any distress for rent processes. 4.The respondents filed a notice of preliminary objection dated 22.5.2026 which is the subject of this ruling. The Preliminary Objection dated 22.5.2026 5.The preliminary objection has been raised on the following grounds;“1.That the petition and the application filed therewith are incompetent, misconceived and an abuse of the process of the court.2.That the application and petition gravely offends the doctrine of sub judice as the issue raised therein are substantially and directly in issue in NANYUKI MELC CASE NO. E073 OF 2025 between the same parties, which suit is pending before a competent court.3.That the petitioner has previously filed multiple applications in the subordinate court seeking substantially similar injunctive and conservatory reliefs, some of which applications have been declined or remain pending prosecution and determination.a.There is pending before Nanyuki CM Court ELC 73 of 2025 an application dated 7th May 2026 by the petitioner herein seeking similar orders (to stay distress). The court declined to grant interim orders, directed service for hearing on 8/7/2026. The application has not been served or prosecuted.b.There is pending before the Nanyuki CM Court ELC 73 of 2025 2 applications dated 19th May 2026 similar word by word by the petitioner herein seeking similar orders to stay distress. The applications await directions.4.That the petition improperly seeks to constitutionalize and elevate an ordinary Lessor- Lessee disputes already pending determination before a competent Magistrate’s court. The petition and application raise no constitutional issue for determination by this Honourable Court.5.That the petitioner has adequate and efficacious remedies within the existing Magistrate’s Court proceedings and ought not to unnecessarily and undeservedly invoke constitutional jurisdiction as a substitute for ordinary civil remedies, review or appeal if dissatisfied with the Magistrate’s Court’s directions.6.That the petitioner is guilty of material non-disclosure and multiplicity of proceedings and is therefore undeserving or equitable relief.7.That the petition and the application filed therewith are frivolous, vexatious and intended solely to delay pending proceedings, frustrate lawful recovery of rent and circumvent existing court orders and proceedings.8.That this Honourable court’s Constitution jurisdiction has not been properly invoked.” 6.On 4.6.2026, the court gave directions for the Preliminary Objection to be heard by way of written submissions. The respondents submit that the effect of the sub-judice rule is to divest the court into which the parallel proceedings are filed of jurisdiction to handle the matter while the first matter remains pending. It is argued that this is but a simple landlord/tenant dispute already active before a court of law and the same relates to enforcement of lease obligations and recovery of rent arrears. That such disputes fall squarely within ordinary civil jurisdiction and not constitutional questions. In support of their arguments, the respondents rely on the cases of Maina and others v Gulf link Enterprises Limited & 5 Others (2026) KEELC, Republic v Kariuki 7 3 Others; Law Society of Kenya( Exparte Applicant) (2020) KEHC10142 (KLR) amongst other cases. 7.In opposition thereof, the petitioner filed it’s submissions where it denies that the petition is subjudice. It argues that the existence of the case before the magistrate’s court does not make the petition subjudice, adding that a citizen has a right to seek constitutional enforcement. To this end, the petitioner relies on Article 2 (4) of the Constitution as well as the case of Ibrahim v Judicial Service Commission & Another (2025) KEHC. 8.It is further argued that subordinate courts operate under statutory limits, thus superior courts must step in if constitutional parameters are breached. It is argued that the preliminary objection prima facie is brought in bad faith, specifically to buy the respondents time to forcefully enter the suit premises on the same day and forcefully take the petitioner’s tools of trade, causing irreparable harm, rendering the petitioner incapable of commercial viability and destroying their business before they could be heard. 9.Other cases cited by the petitioners include; Independent Electoral and Boundaries Commission (IEBC) V Maina Kiai & 5 Others (2017) eKLR, Bia Tosha Distributors Limited V Kenya Breweries Limited & 4 Others (Supreme Court Petition 15 of 2020), Dr. Evans Kidero & 9 Others V Chief Magistrate of Milimani Law Courts & 4 Others (2022) eKLR, Sea Pointe Limited V Chief Magistrate, Kilifi & 4 Others (2026) KEELC 639 amongst other cases. Determination 10.The fundamental nature of a Preliminary Objection was given in the case of Mukhisa Bisquits manufacturing Co. Ltd Vs. West End Distributors (1969) E. A 696 as follows;“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication of pleadings and which if argued as a preliminary point may dispose of the suit.” 11.In the instant suit, the preliminary objection has been raised on the basis that this suit is sub-judice to another matter before the magistrates court. It is not disputed that the protagonists have a land lord tenant relationship of which their dispute has spilled over before the magistrates court in the ongoing case Nanyuki CM ELC 73 OF 2025. The respondent contends that the petition is subjudice to the aforementioned proceedings before the magistrates court, an averment which is hotly contested by the petitioner who argues that their suit raises constitutional issues. 12.The provisions of Section 6 of the Civil Procedure Act stipulate that:“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.” 13.In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested parties) [2020] eKLR the Supreme Court affirmed that;“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 & diminish the chances of courts with competent jurisdiction, issuing conflicting decisions over the same subject matter.” 14.n the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR, a decision cited by the respondents, it was stated that;“there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a court or judge. The concept of sub judice is 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 first suit goes on”. 15.. The grievances of the petitioners are set out at paragraph 13 and 14 of its submissions as follows;“1.The lease has express arbitration, repair, maintenance, rent deduction and rent abatement clauses and process by which rend deduction and abatement amounts are determined.2.The petitioner is deeply aggrieved for the following reasons:i.Multiple breaches of the lease by the 1st respondent and their failure to comply with repair, maintenance, dispute resolution and rent abatement and rent deduction provisions resulting in severe loss and rendering part of the suit premises uninhabitable, being denied a fair hearing in relation to the petitioners claim of Ksh 10,250,000/- against the 1st respondent.ii.Being denied a fair hearing in relation to the petitioners claim of kshs 10,250,000/- against the 1st respondent,iii.The granting of two mandatory interlocutory relief orders to the 1st respondent in the Magistrates suit that pre-determine the outcome of the dispute and deny the petitioner a fair hearing, despite the Magistrate ruling that there were valid competing claims yet to be determined,iv.Payment of all rent monies ordered to be paid into court by the petitioner on 1st October 2025 paid to the 1st respondent under Magistrates ruling on 19 February 2026 – without the merits of the suit being heard or determined,v.Extensive and irreparable damage to their reputation and business of the petitioner, caused by two violent re-entry instances by the 1st respondent, threats to their staff, intimidation, constant harassment of the directors and their staff, including threats to jail them and building a guard post directly outside the suit premises to monitor and intimidate the petitioner and their staff,vi.Threats and intimidation by Raphael Wamiti director of the 1st respondent who at a chance meeting at a barbers shop called an individual and directed them to the director of the petitioners house, terrifying him and his small child to the extent they fled their residence (OB filed for intimidation at Nanyuki Police station)vii.Threatening text statements by the 1st respondents Advocate Thuku Mbaro that the petitioner’s advocates should be careful to him as he can ‘play very badly’,viii.That the 2nd respondent entered the suit premises without court orders or warrant for re-entry (as mandated and not option under clause 7.1.6 of the Lease), without the petitioner having a fair hearing and the quantum of rent if any due being determined andix.On 22 May 2026 the 2nd respondent entered the suit premises forcefully and broke large sections of wall of a specialized cooking area the petitioner had built – rendering it non-functional and irreparably damaging it – and took a specialized 9-tray oven (owned by a third party) rendering the business commercially unviable despite the express prohibition against removal by auctioneers of essential of tools of trade in Section 16 of the Distress for Rent Act.” 16.The question begging for an answer is; Is the petitioner challenging the orders given by the magistrates court regarding the dispute at hand, or does he desire that this court should deal with the dispute afresh as a court of first instance. From whichever angle one looks at the petition, it is certainly dead on arrival for reasons which shall be articulated herein. Appeal and Review 17.The provisions of Article 50 (1) of the Constitution stipulate that;“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”The petitioner is not claiming that the dispute is not properly before the Magistrate’s Court. Indeed the petitioner has not raised an issue of jurisdiction before that court so as to give the said court an opportunity to down its tools if need be. 18.Since the dispute between the protagonists is already active before a court of competent jurisdiction, how then does this court take over the determination of the dispute absent an appeal or a review of the magistrate’s orders. That is certainly untenable and unacceptable. The proper channel to challenge the orders given by the Magistrate’s Court is through Appeal or Review. This far, the petitioner has no basis to argue that its right to a fair trial under Article 50(1) of the Constitution has been violated. The Judicial Legal System in the Republic of Kenya 19.The Kenya’s judiciary is structured in a clear hierarchy from Magistrates’ Courts, High Court and Courts of equal status, Court of Appeal and the Supreme Court. Each court at which ever level must respect the institutional integrity of the other levels of the courts. 20.In a case where a claimant had failed to challenge the decision of a land tribunal in accordance with the laid down mechanisms, the Supreme Court of Kenya stated as follows in Machani v Ombui & 2 others (Application 2 of 2015) [2015] KESC 33 (KLR) (3 December 2015) (Ruling) Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others [2015] eKLR Neutral citation: [2015] KESC 33 (KLR);“It is clear from the foregoing account that, at no time were the substantive issues now framed in the application before this Court, ever considered, or determined by the superior Courts. The issues now being associated with “matters of general public importance”, have clearly not evolved through the judicial hierarchy, in the mode contemplated by this Court in the Peter Oduor Ngoge case. Suffice it to say that if this Court were to admit and determine such issues, the Court would be determining them in the first instance—which would be contrary to established principle, and to the design of the judicial system” 21.Even though in the case at hand the dispute is already before another court of law, inviting this court to delve into the rights, interests and obligations of the parties (as this is what the petition is all about) relating to the lease between the two parties is tantamount to converting this court to a court of first instance which flies against the Constitutional architecture and the jurisdictional limits of the court. The dispute between the protagonist is already active before a court of competence jurisdiction thus this court has a constitutional mandate to respect the hierachial legal systems in the Judiciary of the Republic of Kenya. Multiplicity of Proceedings 22.This court is not fully seized of the proceedings before the magistrate’s court, however it is quite apparent that the petitioner is seeking similar or almost similar orders through a plethora of applications in different forums. For instance from the documents availed by the respondents in this matter, the petitioner has filed multiple applications before the magistrates court including an application dated 7.54.2026 seeking orders restraining the current respondents from interalia, entering the suit premises and also prayed that the respondents be cited for contempt. In yet another application of 19.5.2026, the petitioner is seeking more or less similar orders. 23.Before this court, the petitioner has filed a miscellaneous suit no E009 OF 2025 seeking orders interalia, stay of execution of and leave to appeal against the magistrates courts orders requiring the petitioner to deposit the sum of sh.2, 411 670 as rent arrears. The ruling in the matter is pending. 24.. While in the instant suit, the petitioner has again filed an application seeking orders restraining the respondents from interalia, entering the suit premises as well as an absolute stay of execution of any intended distress for rent. 25.In the case of Kivanga Estates Limited v National Bank of Kenya Limited [2017] eKLR, the Court of Appeal stated as follows;“We entertain no doubt whatsoever that by engaging nearly all levels of the court system for the last 27years!, filing one suit in one court after the other, moving from Embu, Meru, to Nairobi, amounts to gross abuse of the process of the court. The learned Judge properly balanced the two competing interests: the public interest in ensuring that there is finality in litigation (and that a party should not be “stung" twice in the same matter), and the private interest of a party guaranteed by the Constitution to access the courts. He kept in mind the fact that in all the circumstances, the appellant was misusing or abusing the court process by seeking to raise before it the issue which it had raised before in previous suits, some of which may still be pending. The court will look closely at the conduct of the party bringing subsequent proceedings in respect of the same matter in order to prevent abuse of its process and it has the power, in case of abuse of its process to ex debito justitiae prevent it. There is no greater duty for the court than to ensure that it maintains the integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by, amongst other measures, stopping litigations brought for ulterior and extraneous considerations. The courts, litigants and counsel are enjoined by both the Constitution and the law to assist the court to further the overriding objective for the just determination of the proceedings; the efficient disposal of the business of the court; the efficient use of the available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the parties. We believe the learned Judge had this in mind when he warned counsel for the appellant of the risk of an order of costs being made personally against him if he continued to bring more actions on the same dispute” Emphasize added. 26.It is clear that in filing multiple suits and applications at different levels of the courts, the petitioner is in essence abusing the processes of the court. In the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya ( supra), the court stated that;““Abuse of court process created a factual scenario where a party was pursuing the same matter by two court process. A party by the two court process was involved in some gamble, a game of chance to get the best in the judicial process. A litigant had no right to purse paripasua two processes, which would have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both.Litigation was not a game of chess where players outsmarted themselves by dexterity of purpose and traps. On the contrary, litigation was a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks. Pursuing two processes at the same time constituted and amounted to abuse of court and/or legal process” Emphasize added." Constitutional Threshold 27.Finally, I find that not all claims of right to property under Article 40 should be litigated thorough the constitutional platform. After all, it is quite apparent that land disputes majorly relate to assertions of right to property, of which such disputes are dealt with in the ordinary civil courts and not as constitutional petitions. In the case at hand, the dispute between the parties relate to a lease and nothing more. 28.In the case of Abdallah Mangi Mohamed Vs. Lazarus & 5 Others[2012] eKLR cited in Anne Wawuda & 3 others v Kenya Railways Corporation & another [2015] eKLR, the court held that;“…..Where there is a dispute as to the applicants’ entitlement to property and where there exists a statutory mechanism for the resolution of the dispute, the statutory procedure should be utilized in the determination of the applicant’s claim to the property rather than clog the constitutional court with applications for enforcement of purported rights which require prior determination. The improper practice of making all private disputes as to ownership of property as applications for enforcement of constitutional rights to property should be discouraged.” Emphasize added. 29.This far I am in agreement with the submissions of the respondents that the petition does not disclose any genuine constitutional question. I therefore come to the conclusion that the Notice of Preliminary Objection dated 22.5.2026 is merited. Thus the entire petition is hereby struck out with costs to the respondents. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 10TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:C/A – Nancy MwangiAhmed for PetitionerThuku Mbaaro for respondent