[2024] KEELC 3379 (KLR)
The court found that the plaintiff in this suit is the 5th defendant in Milimani ELC Suit No. 100 of 2019, and that both suits concern the same property (LR No. 1870/11/200 Nairobi) and substantially the same parties. The court confirmed that the subject matter and parties are identical, and that interim orders have...
Source-derived case information.
- Citation
- [2024] KEELC 3379 (KLR)
- Parties
- Plaintiff: Horizon Hills Limited; Defendant: Cissy Kalunde Musembi; Defendant: Prisca Wambua t/a Wambua and Maseno LLP Advocates; Defendant: Land Registrar Nairobi; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit E113 of 2022
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- suit struck out under sub judice rule
- Judges
- LN Mbugua
- Legal Topics
- Sub Judice, Preliminary Objection, Ownership Dispute, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Horizon Hills Limited
Plaintiff
Cissy Kalunde Musembi
Defendant
Prisca Wambua t/a Wambua and Maseno LLP Advocates
Defendant
Land Registrar Nairobi
Defendant
Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is sub judice in light of a pending suit involving the same parties and subject matter.
- 2 Whether the preliminary objection by the 1st and 2nd defendants is merited under Section 6 of the Civil Procedure Act.
Ratio Decidendi
The court found that the plaintiff in this suit is the 5th defendant in Milimani ELC Suit No. 100 of 2019, and that both suits concern the same property (LR No. 1870/11/200 Nairobi) and substantially the same parties. The court confirmed that the subject matter and parties are identical, and that interim orders have already been issued in the earlier suit. Applying Section 6 of the Civil Procedure Act, the court held that the present suit is barred by the sub judice rule and must be struck out to prevent parallel proceedings and conflicting judgments.
Court Disposition
suit struck out under sub judice rule
Orders
- The application dated 17.3.2022 and the entire suit are struck out under the sub judice rule.
- Each party is to bear their own costs of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
Horizon Hills Limited v Musembi & 3 others (Environment and Land Case Civil Suit E113 of 2022) [2024] KEELC 3379 (KLR) (18 April 2024) (Ruling)
Neutral citation: [2024] KEELC 3379 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Case Civil Suit E113 of 2022
LN Mbugua, J
April 18, 2024
Between
Horizon Hills Limited
Plaintiff
and
Cissy Kalunde Musembi
1st Defendant
Prisca Wambua t/a Wambua and Maseno LLP Advocates
2nd Defendant
Land Registrar Nairobi
3rd Defendant
Attorney General
4th Defendant
Ruling
1. The Plaintiff commenced this suit vide originating summons dated 17. 3.2022 seeking a declaration that it is the registered proprietor of parcel LR No. 1870/11/200 Nairobi. Alongside the plaint, the Plaintiff filed a Notice of Motion application dated 17. 3.2022 seeking an injunction restraining the 1st Defendant from interfering with the suit parcel. The same was dismissed on 19. 5.2022 for want of prosecution.
2. The 1st and 2nd Defendants filed a preliminary objection dated 12. 5.2022 which is for determination. They contend that the suit offends the provisions of Section 6 of the Civil Procedure Rules for reason that the Plaintiff is a party (5th Defendant) in Milimani Elc Suit No. 100 of 2019; Kenroid Limited v Aureum Limited & 8 others (Consolidated with ELC Suit No. 227 of 2019; Cissy Kalunde Musembi v Aureum Limited & another) which is before Hon Justice Oscar Angote for hearing of the main suit. Thus this suit is subjudice to the other suit.
3. They also contend that in the said matter, the court issued interim orders of injunction restraining all parties from interfering with the suit property pending determination of the said suit.
4. The 3rd and 4th Defendants are represented in the suit by the Attorney General and though the record indicates that they had also filed a preliminary objection dated 16. 5.2022, the same is neither in the court file nor in the online filing system (CTS).
5. The question for determination is whether the 1st and 2nd Defendant’s preliminary objection dated 12. 5.2022 is merited.
6. Sub-judice is a rule provided for under Section 6 of the Civil Procedure Act which bars courts from trying a matter between similar parties and over the same subject matter provided that the matter is before another Court of competent jurisdiction.
7. In Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR the court 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.”
8. I have perused the file ELC Suit No. 100 of 2019 in the digital platform and indeed the current plaintiff is the 5th defendant thereon. They have even filed a defence dated 2. 6.2022 claiming to have been the previous registered owners of the suit property 1870/11/200. The subject matter in both suits is therefore the same.
9. In the circumstances, I find that the Preliminary Objection of the 1st and 2nd defendants is merited. To this end, the application dated 17. 3.2022 and the entire suit are hereby struck out under the sub-judice rule. Each party is to bear their own costs of the suit.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF APRIL, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Sichangi for 2nd and 3rd DefendantsCourt assistant: Eddel