The application is dated 24th May 2024 and is brought under Sections 1A, 1B, 3A 27(1) of the Civil Procedure Act, CAP 21, Order 22 Rules 22, Order 40 and Order 51 of the Civil Procedure Rules 2010 seeking the following orders;
1. That this Application be certified as urgent and service thereof be dispensed with in the first instance.
2. That pending the hearing and determination of the instant application inter partes, there be temporary orders of injunction restraining the Respondents whether by themselves, their agents and or servants, employees, assigns, successors nominees or anybody taking or assuming title from any one of them or otherwise however described be temporarily injuncted from alienating, transferring, selling, disposing off, subdividing, fencing, making use of, charging, breaking into, entering, demolishing, and or remaining thereon and/or undertaking any other destruction or in any manner interfering with the Applicant’s quiet enjoyment and exercise of the suit property known as Mavoko Town Block 12/326 situated at Mavoko within Machakos County.
3. That pending the hearing and determination of the suit, there be temporary orders of injunction restraining the Respondents whether by themselves, their agents and or servants, employees, assigns, successors nominees or anybody taking or assuming title from any one of them or otherwise however described be temporarily injuncted from alienating, transferring, selling, disposing off, subdividing, fencing making use of, charging, breaking into, entering, demolishing, and or remaining thereon and/or undertaking any other destruction or in any manner interfering with the Applicant’s quiet enjoyment and exercise of the suit property known as Mavoko Town Block 12/326 situated at Mavoko within Machakos County.
4. That the Machakos County Criminal Investigating Officer (CCIO) and the OCS Mavoko Police Station to maintain peace and order while overseeing compliance with these orders.
The application is based on the grounds that the suit property Mavoko Town Block 12/326 is subject to active litigation proceedings in the Milimani Commercial and Tax Division Court in Civil Suits Nos. 180 of 2016 Kamulu Academy Limited -vs- British American Insurance & 2 Others consolidated with Civil Case No. E139 of 2018 (Luziki Holdings Limited vs. British American Insurance & 2 others in which the Applicant challenges the auction process where the 1st Respondent was irregularly declared as the highest bidder.
That the suit property is also subject to a pending appeal Civil Appeal No. E164 of 2022 Luziki Holdings Limited vs. British American Insurance (k) Limited and 3 Others which appeal is pending determination. The Honourable Justice W. Okwany in order to preserve the suit property had on the 19th October, 2021 issued an order in favour of the Applicant maintaining the status quo obtaining then and the said orders have never been vacated nor set aside. The obtaining status quo at the time was that the property was registered in the name of Kamulu Academy Limited and the Applicant was in exclusive use and possession of the property. However, in a strange turn of events the 1st Respondent while working in cahoots with the officials of the 3rd Respondent on the 22nd November, 2023 irregularly lifted the orders of status quo registered against the title without a lawful court order caused the property to be transferred to himself and thereafter illegally and in an attempt to defeat the Applicant’s interest to the property transferred it to the 2nd Respondent. The 2nd Respondent with the use of the police and in a company of armed goons waylaid the suit premises on the 22nd May, 2024 assaulted and seriously injured the Applicant’s employees residing in the premises and destroyed property worth millions and drove away tens of dairy cows and goats from the farm, took away computers and building materials. The 2nd Respondent’s claim over the suit property cannot stand as the title it holds to the property is an illegal title obtained through fraudulent scheme and lifting of the court orders registered in the green card without lawful court orders. That the transfers are tainted with fraud, corruption and procedural irregularities and calls for the court’s scrutiny and intervention to check on the fraudulent and corrupt practices by all the parties involved. It is in the best interest of justice that an interim order of injunction be issued restraining the Respondents from accessing the suit property and or interfering with the possession of Applicant. The Respondents’ illegal, fraudulent and corrupt acts have advanced violations to the Applicant’s constitutional and legal rights over the subject property. This application raises prima facie issues with overwhelming chances of success and hence it meets the grounds for granting of an injunction. The balance of convenience clearly weighs in favour of the Applicant in this matter owing to the overwhelming evidence of fraud and corruption on record.
The Defendant/Respondent raised a preliminary objection in their response stating that the jurisdiction of this court is opposed for reasons inter alia that the matter is res sub judice as there is an active litigation in the High Court and Court of Appeal.
This court has considered the preliminary objection and the submissions therein. The Defendant’s submission is that the suit herein is sub judice and/or res judicata.
Section 6 of the Civil Procedure Act provides that;
“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 are 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 the case of Kenya Bankers Association vs Kenya Revenue Authority,2019 eKLR the court had this to say on the issue of Res sub judice;
‘‘in addition, it is clear that the maters in issue in the suits or proceedings are directly and substantially the same. The parties in the suits or proceedings are the same. The ex parte applicant herein, is litigating on behalf of its 47 members, some of whom are parties in the existing suits. The suits are pending in the High Court which has jurisdiction to grant the relied claimed.
A cursory look at the prayers sought in this case show that they relate to the same subject matter. However, the principle of sub judice does not talk about the ‘‘prayers sought’’ but rather ‘‘the matter in issue’’ I find that the matters in issue in the suits are substantially the same. In Re the matter of the Interim Independent Electoral Commission, the Supreme Court cited with approval the Australian decision where it was held: -
‘‘…. we do not think that the word ‘‘matter’’ …means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter…unless there is some right, duty or liability to be established by the determination of the court…’’
The rationale behind sub-judice rule is to prevent situation of having conflicting orders emanating from the same subject matter. In the case of David Ndii & others vs Attorney General & Others 2021 eKLR, a bench of five Judges inter alia stated;
‘‘The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will….’’
Section 7 of the Civil Procedure Act Provides
“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.”
Expounding further on the essence of the doctrine this Court in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR pronounced itself as follows;
“The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”
It is not in dispute that suit property Mavoko Town Block 12/326 was subject to active litigation proceedings in the Milimani Commercial and Tax Division Court in Civil Suits Nos. 180 of 2016 Kamulu Academy Limited vs British American Insurance & 2 Others consolidated with Civil Case No. E139 of 2018 (Luziki Holdings Limited vs. British American Insurance & 2 others. That the suit property is also subject to a pending appeal Civil Appeal No. E164 of 2022 Luziki Holdings Limited vs. British American Insurance (k) Limited and 3 Others which appeal is pending determination.
I have perused the pleadings of the above- mentioned cases and find that the parties are the same and the subject matter is the same. This is informed by the Plaintiff’s own pleadings and is not disputed. I find that the parties are the same and the subject matter is the same as the matter is on appeal and this matter is clearly sub judice and res judicata. I find this application and the entire suit is an abuse of the court process and not merited and is struck off with costs to the Defendants.
It is so ordered.
1. That this Application be certified as urgent and service thereof be dispensed with in the first instance.
2. That pending the hearing and determination of the instant application inter partes, there be temporary orders of injunction restraining the Respondents whether by themselves, their agents and or servants, employees, assigns, successors nominees or anybody taking or assuming title from any one of them or otherwise however described be temporarily injuncted from alienating, transferring, selling, disposing off, subdividing, fencing, making use of, charging, breaking into, entering, demolishing, and or remaining thereon and/or undertaking any other destruction or in any manner interfering with the Applicant’s quiet enjoyment and exercise of the suit property known as Mavoko Town Block 12/326 situated at Mavoko within Machakos County.
3. That pending the hearing and determination of the suit, there be temporary orders of injunction restraining the Respondents whether by themselves, their agents and or servants, employees, assigns, successors nominees or anybody taking or assuming title from any one of them or otherwise however described be temporarily injuncted from alienating, transferring, selling, disposing off, subdividing, fencing making use of, charging, breaking into, entering, demolishing, and or remaining thereon and/or undertaking any other destruction or in any manner interfering with the Applicant’s quiet enjoyment and exercise of the suit property known as Mavoko Town Block 12/326 situated at Mavoko within Machakos County.
4. That the Machakos County Criminal Investigating Officer (CCIO) and the OCS Mavoko Police Station to maintain peace and order while overseeing compliance with these orders.
The application is based on the grounds that the suit property Mavoko Town Block 12/326 is subject to active litigation proceedings in the Milimani Commercial and Tax Division Court in Civil Suits Nos. 180 of 2016 Kamulu Academy Limited -vs- British American Insurance & 2 Others consolidated with Civil Case No. E139 of 2018 (Luziki Holdings Limited vs. British American Insurance & 2 others in which the Applicant challenges the auction process where the 1st Respondent was irregularly declared as the highest bidder.
That the suit property is also subject to a pending appeal Civil Appeal No. E164 of 2022 Luziki Holdings Limited vs. British American Insurance (k) Limited and 3 Others which appeal is pending determination. The Honourable Justice W. Okwany in order to preserve the suit property had on the 19th October, 2021 issued an order in favour of the Applicant maintaining the status quo obtaining then and the said orders have never been vacated nor set aside. The obtaining status quo at the time was that the property was registered in the name of Kamulu Academy Limited and the Applicant was in exclusive use and possession of the property. However, in a strange turn of events the 1st Respondent while working in cahoots with the officials of the 3rd Respondent on the 22nd November, 2023 irregularly lifted the orders of status quo registered against the title without a lawful court order caused the property to be transferred to himself and thereafter illegally and in an attempt to defeat the Applicant’s interest to the property transferred it to the 2nd Respondent. The 2nd Respondent with the use of the police and in a company of armed goons waylaid the suit premises on the 22nd May, 2024 assaulted and seriously injured the Applicant’s employees residing in the premises and destroyed property worth millions and drove away tens of dairy cows and goats from the farm, took away computers and building materials. The 2nd Respondent’s claim over the suit property cannot stand as the title it holds to the property is an illegal title obtained through fraudulent scheme and lifting of the court orders registered in the green card without lawful court orders. That the transfers are tainted with fraud, corruption and procedural irregularities and calls for the court’s scrutiny and intervention to check on the fraudulent and corrupt practices by all the parties involved. It is in the best interest of justice that an interim order of injunction be issued restraining the Respondents from accessing the suit property and or interfering with the possession of Applicant. The Respondents’ illegal, fraudulent and corrupt acts have advanced violations to the Applicant’s constitutional and legal rights over the subject property. This application raises prima facie issues with overwhelming chances of success and hence it meets the grounds for granting of an injunction. The balance of convenience clearly weighs in favour of the Applicant in this matter owing to the overwhelming evidence of fraud and corruption on record.
The Defendant/Respondent raised a preliminary objection in their response stating that the jurisdiction of this court is opposed for reasons inter alia that the matter is res sub judice as there is an active litigation in the High Court and Court of Appeal.
This court has considered the preliminary objection and the submissions therein. The Defendant’s submission is that the suit herein is sub judice and/or res judicata.
Section 6 of the Civil Procedure Act provides that;
“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 are 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 the case of Kenya Bankers Association vs Kenya Revenue Authority,2019 eKLR the court had this to say on the issue of Res sub judice;
‘‘in addition, it is clear that the maters in issue in the suits or proceedings are directly and substantially the same. The parties in the suits or proceedings are the same. The ex parte applicant herein, is litigating on behalf of its 47 members, some of whom are parties in the existing suits. The suits are pending in the High Court which has jurisdiction to grant the relied claimed.
A cursory look at the prayers sought in this case show that they relate to the same subject matter. However, the principle of sub judice does not talk about the ‘‘prayers sought’’ but rather ‘‘the matter in issue’’ I find that the matters in issue in the suits are substantially the same. In Re the matter of the Interim Independent Electoral Commission, the Supreme Court cited with approval the Australian decision where it was held: -
‘‘…. we do not think that the word ‘‘matter’’ …means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter…unless there is some right, duty or liability to be established by the determination of the court…’’
The rationale behind sub-judice rule is to prevent situation of having conflicting orders emanating from the same subject matter. In the case of David Ndii & others vs Attorney General & Others 2021 eKLR, a bench of five Judges inter alia stated;
‘‘The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will….’’
Section 7 of the Civil Procedure Act Provides
“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.”
Expounding further on the essence of the doctrine this Court in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR pronounced itself as follows;
“The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”
It is not in dispute that suit property Mavoko Town Block 12/326 was subject to active litigation proceedings in the Milimani Commercial and Tax Division Court in Civil Suits Nos. 180 of 2016 Kamulu Academy Limited vs British American Insurance & 2 Others consolidated with Civil Case No. E139 of 2018 (Luziki Holdings Limited vs. British American Insurance & 2 others. That the suit property is also subject to a pending appeal Civil Appeal No. E164 of 2022 Luziki Holdings Limited vs. British American Insurance (k) Limited and 3 Others which appeal is pending determination.
I have perused the pleadings of the above- mentioned cases and find that the parties are the same and the subject matter is the same. This is informed by the Plaintiff’s own pleadings and is not disputed. I find that the parties are the same and the subject matter is the same as the matter is on appeal and this matter is clearly sub judice and res judicata. I find this application and the entire suit is an abuse of the court process and not merited and is struck off with costs to the Defendants.
It is so ordered.