(Being an appeal against the orders by Embu Chief Magistrate Hon. Francis Kyambia in CM-ELC NO. 57 of 2018 delivered on 30/07/2024)
Introduction
1. This appeal arises from the ruling delivered on 30th July 2024 in Embu CM–ELC No. 57 of 2018, by which the learned trial Magistrate dismissed the Appellants’ Preliminary Objection and Notice of Motion dated 30th November 2023.
2. By the said objection and application, the Appellants contended that the Respondent’s suit was barred by Sections 6 and 7 of the Civil Procedure Act and constituted an abuse of the court process.
3. Jurisdiction being a threshold issue, the appeal turns on whether the subordinate court had the legal authority to proceed with the suit once the objection was raised. It is settled law that where jurisdiction is absent, a court must down its tools: Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1.
Factual Background
4. The Respondent instituted Embu CM–ELC No. 57 of 2018 seeking declaratory orders, eviction, and vacant possession in respect of land parcel GATURI/WERU/7743, alleging trespass by the Appellants.
5. The Appellants filed a defence and counterclaim asserting that the Respondent’s title emanated from an illegal and unprocedural subdivision of the parent parcel GATURI/WERU/1206.
6. It was common ground that the same Respondent had previously instituted Embu CMCC No. 293 of 2010 against the Appellants’ deceased father and brother over the same parent parcel, and that the earlier suit had neither been heard nor finally determined.
The Preliminary Objection
7. The Appellants’ objection was grounded on the doctrines of sub judice and res judicata, contending that the latter suit was filed while the former was pending, and that the Respondent had merely re-packaged the same dispute under a different description.
8. The Respondent opposed the objection, arguing that:
• the causes of action were different;
• the land parcels were different; and
• the parties were different.
9. The trial court accepted the Respondent’s position and dismissed the objection, hence this appeal.
Issues for Determination
10. The appeal raises three narrow but dispositive issues:
11. Whether the suit before the subordinate court was barred by Section 6 of the Civil Procedure Act.
12. Whether the suit offended Section 7 of the Civil Procedure Act.
13. Whether judicial discretion could be invoked in the face of a statutory bar.
Analysis
(a) Sub Judice
14. Section 6 of the Civil Procedure Act bars a court from proceeding with a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title.
15. The object of the provision is to prevent parallel litigation, avoid conflicting decisions, and protect the integrity of the judicial process: Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR, para. 67.
16. The earlier suit concerned ownership, transfer, and entitlement to GATURI/WERU/1206. The later suit concerns GATURI/WERU/7743, a subdivision derived from the same parent title.
17. A subdivision does not, in law, sever the dispute from the root title. Where the legality of the parent transaction is in issue, all derivative titles remain subject to that determination: William Charles Fryda v Lance P. Nadeau & Another [2015] eKLR, para. 33.
18. The distinction drawn by the Respondent between a contractual claim and a claim for trespass is one of form, not substance. Section 6 looks at the matter in issue, not the drafting ingenuity employed: County Council of Nandi v Ezekiel Kibet Rutto & 6 Others [2013] eKLR, para. 21.
19. Comparative jurisprudence is in accord. Indian courts have consistently held that sub judice is determined by substance rather than form: National Institute of Mental Health & Neuro Sciences v C. Parameshwara (2005) 2 SCC 256.
20. It follows that once the existence of the earlier pending suit was established, the subordinate court was statutorily barred from proceeding further.
(b) Res Judicata
21. Section 7 of the Civil Procedure Act codifies the doctrine of res judicata, whose purpose is to bring finality to litigation and protect parties from repeated suits over the same dispute: Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, para. 46.
22. The doctrine applies not only to the same parties but also to parties litigating under the same title or as privies: Crescent Construction Co. Ltd v Delphis Bank Ltd [2007] eKLR, para. 19.
23. The Appellants herein litigate in respect of the same proprietary interest previously asserted by their deceased father and brother. Succession does not create a new title; it merely transmits an existing one.
24. English authority has long recognised that res judicata binds privies in estate and title: Arnold v National Westminster Bank plc [1991] 2 AC 93.
25. The Respondent could not lawfully avoid the doctrine by altering the description of the defendants or the framing of the reliefs sought.
(c) Judicial Discretion and Abuse of Process
26. The institution of multiple suits over the same subject matter amounts to an abuse of the court process, whether or not the strict elements of res judicata are satisfied: Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, para. 22.
27. Judicial discretion cannot be invoked to override a clear statutory prohibition. Article 159 of the Constitution does not cure want of jurisdiction: Equity Bank Ltd v West Link MBO Ltd [2013] eKLR, para. 29.
28. The learned Magistrate therefore misdirected himself in exercising discretion where the law had already divested the court of jurisdiction.
Conclusion
29. This Court finds that Embu CM–ELC No. 57 of 2018 was filed while an earlier suit over the same subject matter remained pending, involved parties litigating under the same title, and amounted to an abuse of the court process.
30. The subordinate court lacked jurisdiction to entertain the suit, and the Preliminary Objection ought to have been upheld.
Orders
Accordingly:
31. The appeal is allowed.
32. The ruling delivered on 30th July 2024 is set aside.
33. Embu CM–ELC No. 57 of 2018 is hereby struck out.
34. Costs of the suit and of this appeal are awarded to the Appellants.
DATED, SIGNED AND DELIVERED AT EMBU THIS 12th DAY OF MARCH, 2026.
……………………………………
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. Mr. Mulua for the Appellant
2. Respondent in person
3. Diana Kemboi – Court Assistant
| 6 |