Ringsview Apartment Ltd v Vishnu Builders Ltd & 2 others (Environment and Land Case Application E183 of 2025) [2026] KEELC 4433 (KLR) (13 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURT, NAIROBI** **ELCLMISC APP E183 OF 2025** **RINGSVIEW APARTMENT LIMITED…………..…..…………….…….….... APPLICANT** **-VERSUS-** **VISHNU BUILDERS LIMITED ………….………………………………..1ST RESPONDENT** **VIJAY MORJARIA…………………………..………..……….…..…….2ND RESPONDENT** **BETA AUCTIONEERS……….……………………..…….……………..3RD RESPONDENT** **RULING** **Introduction** 1. The applicant filed this instant notice of motion application dated 1st July 2025 seeking for injunctive orders as against the respondents in the following terms 2. Spent 3. Spent 4. **THAT** pending hearing and determination of the appeal a temporary order of injunction be issued restraining the respondents whether by themselves or their servants, agents, employees or otherwise howsoever from attaching the applicant’s property and interfering with the plaintiff’s quiet possession of the suit premises in whatsoever manner 5. **THAT** this honourable court be pleased to issue an order directing the OCS Kileleshwa Police station to facilitate the enforcement of orders 6. Cost of the application 7. The application was premised on grounds that judgement was delivered in ELC 782 of 2014 which judgement the applicant has filed an appeal which they intend to pursue. That the respondents have obtained orders dated 28th April 2025 directing the deputy registrar to execute transfer documents in respect of some of the apartments that were subject in ELC 782 OF 2014.The applicant is apprehensive that unless this court gives the injunctive orders, the respondents will go ahead and execute the orders which will occasion severe injury to them that cannot be compensated by way of monetary terms as the apartments will no longer be in their possession and depriving them of their proprietary rights. 8. The applicant further indicated that they had filed for stay of execution at the court of appeal, but the appellate court had not granted any interim orders hence this application seeking injunctive reliefs 9. The respondent filed a replying affidavit sworn on the 14th October 2025 by the 2nd respondent. He deponed that the application was defective being that the applicant was seeking for stay of execution of the judgement disguised as an injunction application in a different court other than the court that had issued the decree offending the provisions of **Section 34 of the Civil Procedure Act.** 10. He further deponed that the application offended the doctrine of res judicata, being that the applicant had made several applications for stay of execution and in ELC 782 OF 2014 the application was heard and dismissed, whereas in Civil Appeal E271 of 2023 the application is pending hearing and determination of the same He further deponed that the application offended the doctrine of functus officiant having obtained execution orders in ELC 782 OF 2014 via the ruling delivered on 28th April 2025, and there being no review application or appeal lodged against the ruling the court became functus officio and hence this application seeking to circumvent the said ruling and asking this court to sit as an appellate court. 1. It was further argued that the application had been brought 2 years later after the issuance of the orders for execution occasioning inordinate delay 2. The application was dispensed off by way of written submissions with the applicant filing submissions dated 20th April 2026 Respondents filed their submissions dated 8th June 2026. Applicant’s submissions 1. The applicant submitted that they had successfully lodged an Appeal at the Court of Appeal under COACA E366 of 2025 Ringsview Apartment Limited VS Vishnu Builders Company Limited AND Vijay Morjaria which appeal raised triable issues and for an application for stay one ingredient to be looked is whether the Appeal shall have triable issues indicating that as per their memorandum of appeal, Applicant attached to the application, the same had been established which issues had the potential of overturning the judgement. 2. Counsel also argued that as per the judgement, the respondents were required to fulfil certain conditions such as deliver vacant and quiet possession of Apartments B3, A12 (A9), A11 (A10), B6 (B5), C1, A4, and C10, provided that the 2nd Respondent would first pay the balances of the purchase prices occasioned to the applicants, which order they had not adhered to and therefore allowing the Respondents to execute the parts of the Judgment/Decree that favour them would further add unnecessary convolution in an already complex matter. That the Applicant is at risk of suffering damages that would be impossible to reverse if the Appeal is successful and stay of execution orders would not have been issued relying on the case of **Stanley Kangethe Kinyanjui -Vs- Tony Ketter & 5 others [2013] eKLR** Respondent’s submissions 1. Counsel reiterated the averments in the replying affidavit being that the application was res judicata to Nairobi Civil Appeal No. E366 of 2025, and Milimani ELC No. 782 of 2014.He submitted that applications sought substantially the same reliefs, and that in Civil appeal E271 OF 2023, the matter was pending before the court of appeal, yet the Applicant now seeks to re-litigate the same issues placing reliance on the case **National Land Commission –vs- Registered Trustee of the Arya Pratinidhi Sabha, Eastern Africa & another (2019) eKLR** 2. Counsel submitted that this application for injunction defeated the definition as in Order 40 Rule 1 which provided for the remedy of injunction to be available during the pendency of a suit and Once judgment has been delivered, the suit ceases to exist, and the provision cannot be invoked as it is legally untenable emphasizing the issue of the court being functus officio. Counsel also submitted that the application was sub judice being that there was a similar application in Civil appeal no E271 of 2023. 1. The respondent submitted that the application offended Section 34 of the civil procedure act as the Judgment and Decree the subject of the instant Application was issued and is being executed by this Honourable Court in Milimani ELC/782/2014. And that any application relating to execution should have been filed in the trial court and not this court which application the respondents argued is an attempt to gain an advantage over the respondents to obtain underserving orders 2. Counsel further argued that the applicant had not met the conditions necessary for issuance of stay of execution as in order 42 rule 6 (2) of the civil procedure rules which are demonstration of sufficient cause, that the application had been made without undue delay and that the applicant had provided security for due performance of a decree **Analysis and determination** 1. Having looked at the application, the replying affidavit and the submissions hereto, it is clear that the application is one seeking for stay of execution orders yet the applicant has come to court under order 40 rule 1 of the civil procedure rules seeking for injunctive orders pending appeal. The application for stay of execution pending appeal has then been made under the wrong provisions of the law in an event to try get orders of stay disguised in injunctive orders. However, I will be guided by various of authorities that have held that in the spirit of Article 159 (2) of [the Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) and Section 1As and 1B of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3), failure to cite the correct provisions of law is not fatal and would not warrant a dismissal. 2. Having submitted as above I find that the following issues come up for determination 3. Whether the application is res judicata 4. Whether the application is sub judice 5. Whether the application is an abuse of the court process having 6. On the first issue of whether the application is res judicata, applies, I will be guided by the decision in **Independent Electoral & Boundaries Commission - Vs- Maina Kiai & 5 Others [2017] eKLR,** where the court of appeal identified the following elements of the doctrine: “for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied as they are rendered not in disjunctive, but conjunctive terms; 7. the suit or issue was directly and substantially in issue in the former suit; 8. that former suit was between the same parties or parties under whom they or any of them claim; 9. those parties were litigating under the same title; 10. the issue was heard and finally determined in the former suit; and 11. the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised 12. Anchoring on the reasoning as above, I will be required to look at the previous applications that the respondents have highlighted and determine whether the elements raised of res judicata have been met. In the first application is Nairobi Court of Appeal Civil application E271 of 2023.The application is between the same parties, raising the seeking for orders of stay but the said application is still pending in the court of appeal hence cannot be said to be res judicata. The next application is in civil appeal no 366 of 2025 where the applicant apparently filed an application for stay but later withdrew after the court noted there was a similar application in Nairobi Court of Appeal ,Civil application E271 of 2023 pending determination and on this the doctrine of res judicata also fails .The last application is in the trial court in ELC No 782 of 2014 which application has been annexed to the replying affidavit of the respondent, but there is no order attached to the same indicating that the court heard the application and made a determination on the same dismissing the application as alleged by the respondents .The third application also fails and hence the doctrine of res judicata fails. Whether the application is sub judice 1. Section 6 of the Civil Procedure Act provides for the principle of sub judice 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. In **Kenya National Commission on Human Rights -Vs- Attorney General; Independent Electoral & Boundaries Commission & 16 others (2002) eKLR**,the Supreme Court held that for the doctrine of sub judice to stand, the following must be established: 2. There is more than one suit filed consecutively over the same subject matter; 3. One suit was instituted before the other; 4. Both suits are pending in the same court or any other court having jurisdiction; and 5. The suits are between the same parties or their representatives. 6. It is not in contention that the applicant has filed in Nairobi Court of Appeal, Civil application E271 of 2023 seeking for stay of execution orders as against the execution of the judgement and consequential orders which application is yet to be determined. The application is similar as this miscellaneous application from the evidence attached, the Court certified the matter as urgent and it has not been heard to date which is something the applicant should have followed up on if indeed the application was urgent as it stand the application has been pending for 1 year now. It is not clear why instead of moving the Court for a hearing date, the applicant chose to instead file a miscellaneous application where the facts and reliefs sought are wholly similar to the earlier applications. There is nothing on record to show that the application dated 27th June 2025 was ever prosecuted, determined or withdrawn thus in the absence of such information the presumption is that the same must be pending. Therefore, applying the principles established by the Supreme Court in Kenya Human Rights Commission case (supra) this current application dated 1st July 2025 is sub-judice and in contravention of Section 6 of the Civil Procedure Act. The concept of sub judice is one that bars a Court from trying a matter that is in one way or other before another Court of competent jurisdiction by way of a previously instituted suit as long as it is between the same parties canvassing it under the same title. The rationale behind the rule is to prevent situation of having conflicting orders emanating from two or more different courts over the same subject matter. 7. Allowing parallel proceedings would expose the parties to multiplicity of suits and the real risk of conflicting orders by courts of concurrent jurisdiction. Having examined the pleadings from both parties, I am satisfied that the matter in issue in the present suit is directly and substantially in issue in previously instituted Nairobi Court of Appeal Civil application E271 of 2023 **Final disposition** Accordingly, the Notice of Motion dated 1st July 2025 is without merit and It is hereby ordered that: 1. The present application is dismissed for being sub judice to Nairobi Court of Appeal, Civil application E271 of 2023. 2. Costs will be to 1st and 2nd Respondents. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **13th** day of **July 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Nderi** for the Applicant **Ms. Myoka** for the Respondent **Ms. Mwangi** Court Assistant