https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4704

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCLOS NO. E013 OF 2025** **PETER MUSEMBI NZIOKI ……………………………………......PLAINTIFF** **-VERSUS-** **ANDREW NDOLA NDOLO (Sued as the administrator of the estate of the late ELIZABETH KAMENE NDOLO ……………………..................DEFENDANT** **RULING** 1. Vide the Originating Summons dated 21st November, 2025, the Plaintiff filed these proceedings seeking *inter alia* an order of registration as the proprietor of 21 acres of land within LR. No. 1757/19 by reason of adverse possession and an order of permanent injunction against the Defendant and his agents. 2. Subsequent to the filing of the suit, the Defendant filed a notice of preliminary objection dated 28th February, 2026 seeking a dismissal of the suit with costs on the basis of the following grounds: - 3. **THAT the Court has no jurisdiction to entertain the Application and grant the Orders sought in the said application for the reason that the suit herein is sub judice within the meaning of Section 6 of the Civil Procedure Act.** 4. **THAT the Plaintiff is the 13th Defendant in ELC E019 OF 2022: ANDREW NDOLA NDOLO -V- REUBEN & 72 OTHERS.** 5. **THAT the Plaintiff has Advocates on record in the said suit and has subsequently filed a Defence. Accordingly, the matter has been set down for hearing on 25th May 2026 with leave to the Plaintiff herein to file further documents.** 6. **THAT in the circumstances, the Plaintiff is free and has been granted time by the Court to file a Counterclaim in the said suit and make his demands before the Court for consideration and determination.** 7. **THAT Section 6 of the Civil Procedure Act provides that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, pending in the same or any other court having jurisdiction in Kenya.** 8. Opposing the preliminary objection, the Plaintiff filed a replying affidavit sworn by himself on 21st June, 2026. He averred that the present proceedings are fundamentally different from ELC No. E019 of 2022 both in nature and reliefs sought. He further averred that in ELC No. E019 of 2022, the Defendant herein commenced the suit against numerous persons seeking declarations, eviction orders, injunctions and other reliefs for alleged trespass. 9. The Plaintiff contended that his claim is founded on adverse possession which is personal to him and depends upon proof of his own occupation, possession, developments and other facts peculiar to the claim. Urging the court to dismiss the preliminary objection, it was asserted that the Defendant’s preliminary objection does not raise a pure point of law with the principles set out in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***. 10. Parties agreed to canvass the preliminary objection by way of written submissions. 11. In the Defendant’s submissions dated 1st April, 2026 Counsel contended that the Defendant had demonstrated the following particulars: - 12. There exists a previously instituted suit; 13. The matter in issue is directly and substantially the same; 14. The parties are the same or litigating under the same title; and 15. The previous suit is pending before a court of competent jurisdiction. 16. Counsel was of the view that the Plaintiff cannot litigate ownership and possession in one suit while simultaneously seeking adverse possession over the same land in another. Counsel submitted that both suits are alive before this court and that the filing of the present suit is duplicative and an abuse of court process. It was urged that the suit ought to be struck out with costs. 17. In the Plaintiff’s submissions dated 19th June, 2026, Counsel submitted that the court must conduct a factual inquiry of the pleadings in ELC No. E019 of 2022 and the present proceedings. That the said inquiry cannot be determined without evidence and consequently, the preliminary objection herein falls outside the scope of the ***Mukisa Biscuits (supra)*** case. Counsel urged the court to decline the invitation to strike out the suit for offending Section 6 of the Civil Procedure Act. 18. From the pleadings filed by the parties herein, the following particulars are not in dispute: - 19. The Plaintiff is the 13th Defendant in Makueni ELC Case No. E019 of 2022 whereas the Defendant herein is the Plaintiff in the said case; 20. The dispute in Makueni ELC Case No. E019 of 2022 surrounds land Parcel No. 1757/6 and the resultant subdivision land Parcel No. 1757/19; 21. The Plaintiff has been sued in Makueni ELC Case No. E019 of 2022 on a claim of trespass to land; and 22. Among the reliefs sought by the Plaintiff in Makueni ELC Case No. E019 of 2022 are orders for a permanent injunction, vacant possession and mesne profits. 23. In the present suit, the Plaintiff has sought orders to be registered as the proprietor of 21 acres of land within Parcel No. 1757/19 and a permanent injunction against the Defendant. 24. The sole issue for determination is whether the Defendant has demonstrated that the suit herein is barred by the doctrine of *sub judice* under Section 6 of the Civil Procedure Act. 25. Sub judice is defined in the Black’s Law Dictionary, 9th Edition at page 1562 as follows:- ***“Before the court or judge for determination; at bar”*** 1. In the Kenyan legal system, Section 6 of the Civil Procedure Act governs instances when a suit is sub judice. It provides as follows: - **‘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.’** 1. The Court held as follows in the case of **Republic v Registrar of Societies - Kenya & 2 others Ex-Parte Moses Kirima & 2 others [2017] eKLR**: - ***“Therefore for the principle to apply certain conditions precedent must be shown to exist: First, the matter in issue in the subsequent suit must also be directly and substantially in issue in the previously instituted suit; proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title; and such suit or proceeding must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”*** 1. Again, the Supreme Court in **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR** aptly held as follows: - ***“[67] 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.”*** 1. The Defendant annexed a copy of the Plaint and the Defence in Makueni ELC Case No. E019 of 2022 as Exhibits “ANN-1” and “ANN-2” of his replying affidavit sworn on 28th February, 2026. It is indisputable that the question of ownership of land Parcel No. 1757/6 and the resulting subdivision Parcel No. 1757/19 is contested and represents the heart of the dispute in both suits. Both the opposing parties have sought similar orders for permanent injunction on their peculiar claims of ownership in the suit property. 2. It is also common ground that Makueni ELC Case No. E019 of 2022 is still pending hearing and determination before this Court. 3. The Court of Appeal also had an occasion to express its insight on the doctrine of *res subjudice*. In **Muchiri v Board of Management of Kenya Hospital Association & 2 Others [2025] KECA 2315 (KLR)**, the learned judges observed 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…*** ***In determining whether the rule applies, this Court in Thika Min Hydro Co. Ltd v Josphat Karu Ndwiga (2013) eKLR opined that:“It is not the form in which the suit is framed that determines whether it is sub judice. Rather it is the substance of the suit and looking at the pleading in both cases.”*** ***Therefore, to rephrase the position in E.T. v Attorney General & Another (2012) eKLR the courts must always be vigilant to guard against litigants evading the doctrine of sub judice by introducing new causes of action in subsequent suits so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court, in another way and in form of a new cause of action, a matter which is the subject of another suit in a court of competent jurisdiction. Parties cannot therefore evade the doctrine of sub judice by merely adding other parties or causes of action in a subsequent suit or by giving their case some cosmetic face lifting.”*** 1. The substance of the dispute in this case is similar to that in Makueni ELC Case No. E019 of 2022. The parties are also identical and the suit has also been filed in this court. It leaves no doubt in mind that the present suit is caught by the doctrine of *res subjudice*. 2. Accordingly, the Defendant’s preliminary objection is upheld. This suit is hereby struck out with costs. It is so ordered. **...................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Jematia for Mr. Ndalila for Defendant. Ms. Chama for Plaintiff. Court assistants- Kilonzo & Musyoki