North Rift Diaries Ltd v Seahawk General Logistics Ltd & another (Environment and Land Case E045 of 2023) [2026] KEELC 3468 (KLR) (5 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO E045 OF 2023** **NORTH RIFT DIARIES LIMITED - PLAINTIFF/RESPONDENT** **VS** **SEAHAWK GENERAL LOGISTICS LIMITED - 1ST DEFENDANT/APPLICANT** **STEPHEN KARANJA T/A** **DALALI TRADERS AUCTIONEERS - 2ND DEFENDANT/RESPONDENT** **RULING** **(In respect of the 1st Defendant's Notice of Motion dated 21/11/2025)** 1. What is before the Court is the Defendants’ Notice of Motion dated 21/11/25, seeking an order to strike out the suit for want of jurisdiction, on the grounds that the dispute is commercial in nature and therefore falls within the jurisdiction of the Commercial & Admiralty Division of the High Court. In the alternative, the suit be stayed under Section 6 of the Civil Procedure Act on account of the sub judice rule, as there is an existing suit before the Commercial Court involving the same parties and substantially the same issues. 2. The application is based on the grounds set out therein and the supporting affidavit of Wanzala Dan Samuel, sworn on the same date. In brief, the deponent states that the instant suit arises from the sale agreement dated 29/7/2021 entered into between the applicants and the Respondent. The property, the subject of the sale agreement, was charged to Stanbic Bank, which consented to the agreement. Pursuant to the agreement, the purchase price was to be used to offset the applicants' loan with the said bank. It was a term of the agreement that if the Plaintiff purchaser failed to pay the purchase price, the applicant would be entitled to collect a monthly rent of Kshs 230,000/-. It is averred that the Respondent has defaulted in paying the rent despite Court orders issued on 18/11/2024. That said, the bank auctioned the property, and the auction is now the subject of a pending suit in the commercial division of the High Court. 3. The applicant further avers that the issues raised in the instant suit cannot be considered in isolation, as they are directly connected to the charge over the property and the subsequent auction, the legality of which is the subject of the pending case in the High Court. 4. It was further averred that for the purposes of this Court, its jurisdiction is restricted by the provisions of Article 162 (2) (d) of the Constitution, read together with Section 13 of the ELC Act, in relation to land use planning, environmental title boundaries, and related land disputes. 5. The applicant contends that the instant suit is merely a shopping spree by the Plaintiff, an act tantamount to abuse of the process of the Court. Therefore, in the interests of justice, judicial economy, and the proper administration of justice, the current suit should be struck out for want of jurisdiction, or, in the alternative, stayed pending the conclusion of the suit in the High Court. 6. The Plaintiff opposed the application vide the grounds of opposition dated 20/1/2026 on the grounds that; “The 1st Defendant’s Notice of Motion application dated 21/11/2025 is res judicata, as the issues raised therein were previously raised by the applicant in its Preliminary objection dated 19/3/2025, which this Court determined by a ruling delivered on 22/10/2025.” 1. The 2nd Defendant Respondent did not oppose the application. **The Written Submissions** 1. Following the directions of the Court, the parties filed their written submissions, which I have read and considered. 2. On whether the present proceedings before this Hon. Court should be stayed or struck out because of the matter already pending in the Commercial Court, the applicant submitted in the affirmative. To support this position, the applicant relied on the case of The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54] where the Court stated as follows: - “ 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……. 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 1. As to whether this Hon. Court is the appropriate forum to entertain the matters raised in the present proceedings, the applicant submitted that the suit is founded on a private treaty between the parties in respect to a charge of the suit land and that the appropriate forum is not the ELC Court. In advancing this point the applicant relied on the case of Cooperative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] eKLR, where the Court of Appeal determined that; “that the ELC jurisdiction to deal with disputes connected to ‘use’ of land does not include mortgages, charges, collection of dues and rents. These are within the civil jurisdiction of the High Court. The Court further held that exclusive jurisdiction of the ELC is limited to Articles 162 (2) (b) of the Constitution and Section 13 of the ELC Act which are not concerned with accounting questions whereas the jurisdiction of the High Court in accounting matters is evidenced by Article 165(3) of the Constitution…” 1. In the case of Muthui v Standard Chartered Bank Kenya Limited & another (Environment and Land Case Civil Suit E193 of 2023) [2024] KEELC 3852 (KLR) (23 April 2024) (Ruling) the Court found that; *“*In circumstances where a matter pertains to issues potentially falling within the jurisdiction of multiple Courts, the question of which Court is best suited to determine it is addressed by applying the predominant purpose test. ……. The purpose of the suit is predominantly to audit the loan account and allow the Plaintiff to take over payment of the monies owed and ultimately halt the intended sale of the suit property… I find that this matter falls within the jurisdiction of the High Court (Commercial and Tax Division). 1. It was further submitted that the Respondent's objection based on res judicata is not tenable, given that the Court did not make a final determination of the issue in its Ruling. 2. The Plaintiff/Respondent submitted that the issue is res judicata, having been determined by the Court in its previous ruling. 3. The Plaintiff submitted that the case in the High Court concerns a contractual dispute between a borrower and a lender, and emphasized that the Plaintiff was not a signatory to the loan agreement between the applicant and the bank. Furthermore, the Plaintiff argued that the applicant was authorized to sell the suit property privately to the Plaintiff in order to settle his debts with the said bank, even while the case was pending before the High Court. It was also noted that the sale agreement in question was not finalized. Accordingly, this does not confer any privity of contract or a contractual relationship upon the Plaintiff with the loan agreement between the 1st Defendant and the bank, nor does it imply any involvement in related disputes. 4. It is asserted that the ongoing disputes between the Plaintiff and the applicant primarily concern land, stemming from the applicant's breach of a sale agreement pertaining to the land in favor of the Plaintiff. Consequently, the suit is duly instituted in the appropriate forum. Furthermore, it is contended that the filing of the application constitutes an abuse of the Court process, and the Court is therefore urged to dismiss it. **Analysis and Determination** 1. Having considered the application and the grounds of opposition, the issues for determination are; 2. Whether the application is res judicata 3. Whether the Court has jurisdiction to entertain the suit 4. whether the suit should be stayed 5. costs of the application **Resjudicata** 1. The plea of res judicata is anchored under Section 7 Civil Procedure Act as follows;- 7. Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. —(2) For the purposes of this section, the competence of a Court shall be determined irrespective of any provision as to right of appeal from the decision of that Court. Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 1. The Black’s Law Dictionary 10th Edition defines “res judicata” as “an issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 2. The essence of this doctrine is that judicial determinations must be final, binding and conclusive. There must be finality to litigation. This position was affirmed by the Supreme Court decision in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR and for the plea of res judicata to succeed, the following ingredients must be satisfied; “a. There was a former judgment or order which was final; b. The judgment or order was on merit; c. The judgment or order was rendered by a Court having jurisdiction over the subject matter and the parties; and d. There had to be between the first and the second action identical parties, subject matter and cause of action.” 1. The above position is reflected in South African jurisprudence as well. In the case of FirstRand Bank Limited v Badenhorst NO & others [2023] ZAGPJHC 779 it was observed that the doctrine of *res judicata* is an element of justice that seeks to protect litigants, and the Courts, from repetitive litigation. To determine whether a suit is res judicata Q Leech JA held as follows; - “In my view, the cause of action must be determined from an assessment of the whole of the case in which the final judgment was delivered. The basic ingredients or the factual basis – the necessary, material, central basic facts - that emerge from such an assessment must be compared against the facts distilled from the subsequent case in which the defence of *res judicata* is raised. The defencewill find application if those facts are the same, and the other requirements are satisfied*.”* 1. The Plaintiff asserts that the application is res judicata, as the applicant previously raised similar issues in a preliminary objection dated 19/3/2025. The record shows that the objection was framed as follows: the suit should be struck out in limine because the Court lacks jurisdiction over the matter, as the same suit property is involved in a pending commercial dispute in the High Court. It is further argued that the issues arise from an agreement for sale rather than a dispute over title or land ownership, as these are purely contractual matters and fall outside the Court's jurisdiction. 2. This Court as presently constituted, delivered a judgment on 22/10/25 in which the Court stated “To determine whether the application is sub judice, the Court must analyse the pleadings and the contested facts to establish whether the issues raised in the current suit and those in the case before the Commercial Court are the same. This, effectively, ousts the objection from being a pure legal point” 1. The Court, therefore, dismissed the Preliminary objection without examining its substantive merits on the grounds of a pure procedural technicality. Consequently, I am of the opinion that the application is not res judicata. **Jurisdiction** 1. The jurisdiction of this Court is set out in Article 162 as read with Section 13 of the ELC Act. 2. In addressing this objection, the Court will be guided by the decision of COA in Kangethe case above cited “Accordingly, for land use to occur, the land must be utilized for the purpose for which the surface of the land, air above it or ground below it is adapted. To the law therefore, land use entails the application or employment of the surface of the land and/or the air above it and/ or ground below it according to the purpose for which that land is adapted. Neither the cujus doctrine nor Article 260 whether expressly or by implication recognizes charging land as connoting land use. 36. By definition, a charge is an interest in land securing the payment of money or money’s worth or the fulfillment of any condition (see Section 2 of the Land Act). As such, it gives rise to a relationship where one person acquires rights over the land of another as security in exchange for money or money’s worth. The rights so acquired are limited to the realization of the security so advanced (see Section 80 of the Land Act). The creation of that relationship therefore, has nothing to do with use of the land (as defined above). Indeed, that relationship is simply limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor. 37. Further, Section 2 aforesaid recognizes a charge as a disposition in land. A disposition is distinguishable from land use. While the former creates the relationship, the latter is the utilization of the natural resources found on, above or below the land. As seen before, land use connotes the alteration of the environmental conditions prevailing on the land and has nothing to do with dispositions of land. Saying that creation of an interest or disposition amounts to use of the land, is akin to saying that writing a will bequeathing land or the act of signing a tenancy agreement constitute land use. The mere acquisition or conferment of an interest in land does not amount to use of that land. Else we would neither speak of absentee landlords nor would principles like adverse possession ever arise. If a disposition were held to constitute land use, an absentee landlord with a subsisting legal charge over his land would never have to contend with the consequences of adverse possession, for he would always be said to be ‘using’ his land simply by virtue of having a floating charge/disposition over the property. 38. Consequently, the assertion that a charge constitutes use of land within the meaning of Article 162 of the Constitution fails. In addition, the cause of action herein was not the validity of the charge, but a question of accounts. 1. The Court further clarified the issue of jurisdiction succinctly as thus; “To the appellant, the charge was an instrument granting an interest in the land, hence jurisdiction in the matter lay with the ELC. However, under Section 2 of the said Act, an instrument is a writing or enactment which creates or affects legal or equitable rights and liabilities. For the purposes of this suit, that instrument was the charge. However, it bears repeating that he cause of action herein was never the charge (instrument) but the amounts due and owing thereunder. Neither the charge instrument nor the creation of an enforceable interest thereunder, were disputed. The main questions to be determined were the tabulation of the sums owing and whether statutory notices had issued prior to the attempted statutory sale. 41. Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the Court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court” 1. From the above, it is clear that the Court's jurisdiction does not extend to mortgages and charges. In this case, the dominant issue is ownership of the land. The parties entered into a sale agreement which was partly performed. I say so because the Plaintiff took possession upon paying the deposit under the sale agreement. It would appear that the sale did not go through; hence the Plaintiff has sued for specific performance, a permanent injunction, inter alia. It is my view that, on a reading of the prayers sought in the plaint, the Court has jurisdiction to entertain the matter. **Stay of the suit** 1. I have had the opportunity to peruse the suit as filed in the High Court, which, for the most part, seeks to challenge the legality of the public auction. I have carefully considered the issue, and in my view, the most appropriate course in the circumstances is to stay this suit to allow the parties to prosecute the case in the High Court. 2. In the end, the application succeeds to the extent that this suit is and is hereby stayed pending the hearing and determination of the suit in the High Court – commercial division. 3. **Final orders for disposal** 1. The application dated 21/11/2025 partially succeeds to the extent that the suit be and is hereby stayed pending the hearing and determination of the suit in the High Court. 2. Costs are awarded to the Plaintiff. 4. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr. Waudo for the Plaintiff 2. Ms Ogolla H/B for Mr Marete for the 1st Defendant 3. N/A for the 2nd Defendant 4. CA- Ms Yvette Njoroge