https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3669

Muthoki & 2 others v Mosica Properties Company Ltd & another (Environment and Land Case Civil Suit 76 of 2019) [2026] KEELC 3669 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3669 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit 76 of 2019 AY Koross, J June 16, 2026 Between Joyce Muthoki 1st Plaintiff Margaret Mwongeli Mutinda 2nd Plaintiff Irene Nthenya Nduva 3rd Plaintiff and Mosica Properties Company Ltd Defendant and James Mutua Mutei (Suing as Administrators of the Estate of Joseph Mutei Mutua) Proposed Defendant Ruling 1.The substance of this ruling concerns the proposed defendant’s application dated 30 January 2026, which is stated to have been filed in accordance with Article 40 and 159(2)(d) of the Constitution of Kenya, Sections 1A, 1B, 3A, 6 and 63(c) of the Civil Procedure Act Cap 21, Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, and all other enabling provisions of law. The proposed defendant seeks the following orders from this court: -a.Spent.b.That the proposed defendant herein be and is hereby joined as a defendant in this suit.c.Spent.d.That all proceedings taken without participation of the proposed defendant in this matter be and are hereby set aside, and the hearing of the suit to begin de novo.e.That the plaintiff be directed to amend this suit to reflect the proposed defendant as a defendant in this matter.f.Costs of this application be in the cause. 2.The application was premised on the grounds set out on the face thereof and on the supporting affidavit of Beatrice Wanza Mutei, sworn on 30 January 2026, and succinctly, she informs the court that the plaintiff has filed a lawsuit against the defendant seeking recovery of property known as Mavoko Town Block 2/128 (suit property), The proposed defendant is also involved in a related case, Machakos ELC No 226/2018, whereby they seek declarations that the suit property’s transfer was illegal, his recognition as the rightful owner, and an order to cancel all transfers and titles issued to other parties. 3.Additionally, despite being aware of the ongoing Machakos ELC No 226/2018 case, which involves the same property and issues, the parties herein have proceeded with this new suit without disclosing the existence of the earlier case. She states that this situation falls under Section 6 of the Civil Procedure Act, which addresses the doctrine of sub judice, that prohibits courts from proceeding with suits involving the same subject matter and parties. She avers that there are concerns that delivering judgment in the present suit could unfairly prejudice the proposed defendant, as it would have a direct outcome on Machakos ELC No 226/2018. She also maintains that there is another matter, ELCLC/E031/2024, in which they have requested the consolidation of all these related matters. 4.Upon service, the defendant filed grounds of opposition dated 26 February 2026 that raise grounds inter alia:-a.The application is presented by a party not properly joined in the suit, and thus, the same application is defective, not tenable in the eyes of the law and cannot be sustained as it is brought by a party seeking to be joined as a defendant, which discretion lies with the plaintiff and not a party not joined in the suit.b.The said proposed defendant has not demonstrated any interest in this suit so as to be joined in this suit and thus lacks the requisite locus standi and as such cannot sustain the application.c.The issues raised in the suit herein are different in comparison with the issues raised in the alleged related suits.d.The order seeking to have this matter commence and heard de novo is an affront to the just and expeditious conclusion of matters before the court. The same is likely to occasion substantial injustice upon the parties who have been waiting for the conclusion of the same matter, only for the same to be neutered by an application that will delay the same, thus tantamount to an abuse of the court process.e.The defendant herein has raised in his submissions questions of law for determination, including but not limited to the question of whether this suit is statutorily time-barred and believes the application herein is intent on circumventing the same point of law raised in the foregoing matter. 5.Despite court directions on filing written submissions within the timelines, none of the law firms on record for the parties have filed any by the time of penning this ruling. Therefore, if they are filed at all, this court will consider them as having been filed out of time. Accordingly, having given careful thought to the motion, its grounds, affidavit and annexures, records in this file, Machakos ELC No 226/2018, grounds of opposition, the legal framework and prevailing jurisprudence, the issues for determination are(a)whether the proposed defendant should be joined as a party to these proceedings and(b)whether the present suit is sub judice.We now deal in a sequential manner. a. Whether the proposed defendant should be joined as a party to these proceedings 6.It is necessary to address this issue first, as it has a direct bearing on the outcome of the 2nd issue. Respecting the law on this matter, guidance is drawn from Order 1 Rule 10(2) of the Civil Procedure Rules (CPR), which has mainly been interpreted to mean that the party who should be joined or added to civil proceedings-whether as a defendant, plaintiff, or interested party, whose presence in the proceedings is essential to assist the court in determining the matter effectively and comprehensively should be included in the proceedings. This proviso states as follows:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 7.The Black’s Law Dictionary, 11th Edn, page 1351, defines an interested party in the following terms:“A party who has a recognizable stake (and therefore standing) in a matter.” 8.The meaning of this definition was reiterated in the Supreme Court of Kenya's decision in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), as follows:“3.An interested party was one who had a stake in the proceedings, though they were not initially a party to the cause. Such a person felt that their interest would not be well articulated unless they personally appeared in the proceedings, and championed their cause.” 9.When considering a motion for joinder, the court exercises prudent discretion rooted in law and reason. Therefore, this court adopts the guiding principles established in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), thus: -“37.From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 10.Accordingly, and in applying these principles while having considered the opposing arguments, records in the present file and Machakos ELC No. 226/2018, together with documents submitted in both cases, this court finds that the proposed defendant has a stake in this matter, as the deceased plaintiff in the other case contended that Serah Munee, [who the plaintiffs herein have stated in the plaint that they are the administrators of her estate], in her capacity as his trustee and whose estate is a defendant in the other case, together with the defendant herein, improperly dealt with the suit property, which was allegedly his. In both matters, various reliefs have been sought concerning the suit property and/or its subdivisions. 11.Therefore, it is sufficient to state that the proposed defendant has a direct, identifiable interest in this matter and will be highly prejudiced if not joined, as the outcome directly affects him. Moreover, only through such joinder can this court exercise jurisdiction and resolve the second issue. Accordingly, the court finds that the proposed defendant has satisfied the requisite legal threshold. b. Whether the present suit is sub judice and an abuse of court process 12.The legal framework on the doctrine of sub judice is found in our Section 6 of the Civil Procedure Act, in the following terms: -“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.Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court..” 13.In illuminating the import of this doctrine and in finding that sub judice arose, 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) stated thus:“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 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.” 14.In considering the overriding objective of the court under Section 1A of the Civil Procedure Act and the purpose of the doctrine, the Court of Appeal in the recent decision of Muchiri v Board of Management of Kenya Hospital Association & 2 others [2025] KECA 2315 (KLR), stated as follows: -“In our view, the filing of multiplicity of suits by parties or their representatives on the same or substantially the same subject matter violates the overriding objective since it goes contrary to the duty to efficiently dispose of the business of the court. By engaging the courts in different suit where the issues may be disposed of in one suit, the sub judice rule ensures that the available judicial and administrative resources are efficiently used. It is invoked in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. A multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. They should therefore be avoided once the court’s attention is brought to the fact of existing suits or proceedings.” 15.Now, guided by the law and settled jurisprudence, and having scrutinised the pleadings in the related matter, this court has no difficulty in determining that this case aligns strictly with the doctrine for several reasons: the estate of Serah Munee, whom the plaintiffs have stated they represent, is a 2nd defendant in the related matter; the defendant herein is also a defendant in the related matter; both cases concern the same suit property; and the cause of action of fraud is identical in both cases. Furthermore, the related matter was filed prior to this one. After a finding of sub dice, the Apex court in Kenya National Commission on Human Rights (Supra) dismissed the matter before it. In Republic v Kariuki & 3 others; Law Society of Kenya (Ex parte Applicant) [2020] KEHC 10142 (KLR), the court struck out the offending suit. 16.Furthermore, in Republic v Kariuki (Supra), the court stated that when sub judice is established, it amounts to abuse of court process by stating thus:-“Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice.” 17.Although this matter was at an advanced stage and had even been reserved for judgment, its status cannot override the fact that its existence constitutes an abuse of the court process. It is also noteworthy that, despite the related suit, none of the parties involved herein raised this issue therein save for the proposed defendant, who raised it when he became privy to this matter. The existence of this suit has resulted in parallel proceedings regarding the same issues, parties, and subject matter, which may cause the court embarrassment if this court renders a judgment in this matter and a coordinate court issues conflicting orders in the related matter. 18.Consequently, this court finds that this suit constitutes an abuse of process and should be struck out. The court finds the application dated 30 January 2026 merited. Since the plaintiffs are responsible for the circumstances faced by the other parties in this matter, they shall bear the costs. The court hereby issues the following final orders:a.The proposed defendant is joined as the 2nd defendant herein.b.This suit is hereby struck out.c.The plaintiffs shall bear the 1st defendant’s costs of the suit.d.The plaintiffs shall bear the 2nd defendant’s costs of the motion.e.This file is hereby effectively marked as closed.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 16TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE16.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Githumbi for the applicant.No appearance for other parties