[2025] KEELC 5283 (KLR)

[2025] KEELC 5283 (KLR)

The court found that the present suit was subjudice because the issues raised were directly and substantially the same as those in Migori C.M.C ELC No. 96 of 2021, which had been struck out, and an appeal against that decision was still pending. The pendency of the appeal meant that the matter was still active before another court of competent jurisdiction. Therefore, proceeding with the current suit would contravene Section 6 of the Civil Procedure Act. The preliminary objection was merited, and the suit was struck out as being subjudice.

Citation
[2025] KEELC 5283 (KLR)
Parties
Plaintiff: Sare Developers; Defendant: Charles Airo; Defendant: Barrack Otieno Dache
Court
Environment and Land Court
Court Station
Environment and Land Court at Migori
Jurisdiction
Kenya
Judgment Date
17 March 2025
Case Number
Environment and Land Case E002 of 2023
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Outcome
suit struck out as subjudice
Judges
MN Kullow
Legal Topics
Subjudice, Jurisdiction, Striking Out Suit
Source Language
English
Civil Procedure Land and Property Subjudice Jurisdiction Striking Out Suit

Case Brief

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Parties

Sare Developers

Plaintiff

Charles Airo

Defendant

Barrack Otieno Dache

Defendant

Procedural Posture

Preliminary Objection / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the present suit is subjudice in light of a previously instituted suit involving the same parties and subject matter.
  2. 2 Whether the court has jurisdiction to entertain the suit given the pendency of an appeal on the same issues.

Ratio Decidendi

The court found that the present suit was subjudice because the issues raised were directly and substantially the same as those in Migori C.M.C ELC No. 96 of 2021, which had been struck out, and an appeal against that decision was still pending. The pendency of the appeal meant that the matter was still active before another court of competent jurisdiction. Therefore, proceeding with the current suit would contravene Section 6 of the Civil Procedure Act. The preliminary objection was merited, and the suit was struck out as being subjudice.

Court Disposition

suit struck out as subjudice

Orders

  • The suit is struck out for being subjudice.
  • No order as to costs.