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I. Introduction
1. Before the Honourable Court for its determination is a Notice of Motion application dated 2nd July 2025. It was filed by JUMA MOHAMED MWACHIHI the Defendant/Applicant herein. The application was brought under the provision of Sections 1A, 1B, 3, 3A, 6 and 7 of the Civil Procedure Act, Cap 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010.
2. Upon service, the Plaintiff/Respondent while opposing the application filed replies through a Replying Affidavit dated 29th July, 2025. The Honourable Court will be dealing with the issues at a later stage of this Ruling.
II. The Defendant/Applicant’s case
3. The Defendant/Applicant sought for the following orders: -
a) That this suit be stayed or struck out on the grounds that it is sub judice or Res Judicata in view of Mombasa ELCC No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Mwangi Mburu & 9 Others.
b) That the costs of this application be provided for.
4. The application was premised on the grounds, testimonial facts and the averments made out under the supported by an 8 Paragraphed Supporting Affidavit sworn by Mr. JUMA MOHAMED MWACHIHI together with an annexture marked as “JM – 1” annexed herein. He averred as follows that:-
a) He was the Defendant/Applicant in this matter and therefore competent and duly authorized to swear the said affidavit on his own behalf.
b) The Plaintiff/Respondent herein had instituted the current proceedings, being “Kwale Environment and Land Court Case No. E008 of 2025”, which in his view raised issues that were substantially similar to those in the case of “Mombasa ELC Case No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Hezron Kamunya & Others”, a matter in which he was the Plaintiff. In support of this contention, the Defendant annexed copies of the pleadings and rulings in the said Mombasa case, collectively marked as “JM–1.”
c) He further stated that in the said Mombasa matter, the Honourable Court delivered a ruling on 31st October 2024, addressing the same subject matter and legal questions as those now placed before this Court.
d) Being dissatisfied with the outcome of that ruling, the Plaintiff in the present matter lodged an appeal, being Court of Appeal Civil Appeal No. E238 of 2024, which remained pending determination before the Court of Appeal.
e) It was therefore his position that the issues raised in the present suit was res judicata and, in light of the pending appeal, also sub judice, as the parties were the same or substantially the same and litigating under the same title.
f) Allowing this suit to proceed in its present form would amount to forum shopping and an abuse of the court process, as it seeks to reopen issues already determined or currently under active consideration by a competent court.
g) Consequently, he urged this Honourable Court to find the suit incompetent and to either stay or strike it out in the interest of justice, judicial economy, and to prevent the multiplicity of proceedings.
h) In conclusion, he affirmed that the contents of his affidavit were true to the best of his knowledge, belief, and understanding, and that his opposition to the suit was made in good faith and in the proper exercise of his right to defend the integrity of prior court determinations.
III. The responses by the Plaintiff/Respondent
5. The Plaintiff/Respondent responded to the Notice of Motion dated 2nd July 2025 through a 22 Paragraphed Replying Affidavit sworn and dated on 29th July 2025 by SAMUEL MWANGI MBURU together with annextures marked as “SMM – 1 to 5” where he deposed that: -
a) He was an adult male of sound mind, the Plaintiff/Respondent herein, seized with material facts of this case and therefore competent to swear this Affidavit.
b) He had read, understood and where in doubt the contents of the Defendant/Applicant''s Application dated 2nd July, 2025 had been explained to him by his Advocates on record and therefore wish to respond to allegations wherein as follows;
c) He was advised that that the Application dated 2nd July, 2025 contravened the mandatory provisions of Article 159(2)(b) of the Constitution of Kenya 2010.
d) He was further informed that substantive justice dictated that he be given an opportunity to be heard on merit, rather than shutting the doors of justice for him at an interlocutory stage.
e) In light of Paragraph 4 above the Application dated 2nd July, 2025 contravened the mandatory provisions of Article 50(1) of the Constitution of Kenya 2010.
f) The Defendant/Applicant had filed a Statement of Defence before this Honourable Court raising issues that ought to be canvassed at the full tríal of this suit. Annexed herewith was a copy of the said Statement of Defence marked as "SMМ - 1".
g) Among the issues contemplated in Paragraph 6 above, it was the jurisdiction of this Honourable Court to entertain this matter which issue could only be canvassed during the full trial of this suit.
h) On or about 10th May, 2021 while Mombasa ELC 5 of 2018 was still pending in Court, the Defendant/Applicant approached him with an intention of compromising the said suit in which he offered to sell to him the suit property.
i) He accepted the said offer and a sale agreement was executed between him and the Defendant/Applicant herein, where he paid a sum of Kenya Shillings One Million, Seventy Three Thousand, Five Hundred and Seventy (Kshs. 1,073,570/=) being full purchase price of the suit property. Annexed herewith a copy of the said sale agreement marked as "SMM - 2".
j) By signing the sale agreement mentioned in Paragraph 8 above, he was made to believe that Mombasa ELC 5 of 2018 had been settled however, the Defendant/Applicant proceeded with the full hearing of the matter; without my knowledge and secured a Judgement to that effect, which judgement was delivered on 20th January, 2022. Annexed herewith a copy of the said Judgement marked as "SMM - 3".
k) The said Judgement never talked about the sale of the suit property by the Defendant/Applicant to the Plaintiff/Respondent, hence the sale in question, was a new or fresh issue which ought to be heard and determined by this Honourable Court on merit.
l) In addition to Paragraph 10 above, the Defendant/Applicant had sworn Affidavits in Mombasa ELC No. 5 of 2018 advising him that the best forum to articulate and/or pursue specific performance on the sale agreement dated 10th May, 2021 was to file a new and/or fresh suit which advise he did follow by filing this suit. Annex herewith a copy of the said Affidavit(s) marked as "SMM - 4 (a) and (b)".
m) In light of Paragraph 11 above, the Defendant/Applicant could not had his cake and eat it as well by blowing both hot and cold at the same time.
n) The Defendant/Applicant was not specific on which orders he was actually seeking before this Honourable Court, whether he wanted the suit to be stayed or struck out as the said reliefs could not be given simultaneously.
o) Neither had it been exactly explained which between “the Doctrines of Sub - Judice and Res Judicata” does the Defendant/Applicant want the instant suit struck out nor has it been explained whether and how the suit herein was “Sub - judice or Res – Judicata”.
p) The Civil Appeal No. E238 of 2024 was equally distinct from the suit herein and any decision that would be rendered wherein would not at all affect this suit.
q) It was manifested from the Statement of Defence and Affidavits by the Defendant/Applicant mentioned in Paragraphs 6 and 11 above that it was not in dispute that the suit property was no longer available for the Defendant/Applicant.
r) The application never met the requisite threshold required for grant of stay of proceedings and it is for the interest of justice that the same be dismissed with costs to him.
s) The Pre - trial directions had since been taken in this matter, and a hearing of the main suit reserved for 1st December, 2025 which date was taken on consent of parties herein therefore, the instant application was an after-thought hence the same ought to be dismissed with costs to him. Annexed herewith a copy of an extract from CTS to that effect which he marked as "SMM - 5”.
t) There was no prejudice that would be subjected to the Defendant/Applicant if the Application was dismissed and the matter proceeded to full hearing as scheduled.
u) The application had been filed in UTMOST bad faith, with undue delay and it was for the interest of justice that the same be dismissed.
IV. Submissions
23. On 31st July, 2025 while all the parties were present in Court, they were directed to have the Notice of application dated 2nd July 2025 be disposed of by way of written submissions. On 25th September 2025 the matter was mentioned to confirm filing of the said submissions. Pursuant to that, all the parties stated that they had complied and a ruling date was reserved by Court accordingly.
A. The Written Submissions by the Defendant/Applicant
24. The Defendant/Applicant though the Law of Messrs. Ameli Inyangu & Partners, filed their written submissions dated 1st August 2025 in support of the Notice of Motion dated 2nd July 2025. Mr. Maundu Advocate commenced the submissions by providing a brief back ground of the matter. The submissions could be summarized into three (3) key issues for determination:
25. Firstly, on whether the present suit was barred by Res Judicata. The Learned Counsel submitted that the present suit, Kwale ELC No. E008 of 2025 — was grounded on the same cause of action previously litigated in “Mombasa ELC No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Hezron Kamunya & Others”, in which Judgment was rendered on 20th January 2022. The Plaintiff/Respondent herein, who was a Defendant/Applicant in that case, had been found to be a trespasser on the suit property known as Kwale/Ukunda/1009 and was ordered to vacate.
26. The Learned Counsel further averred that the Plaintiff/Respondent’s current claim was based on a Sale Agreement dated 10th May 2021, terms and conditions for 167 square metres of the same parcel, was the same issue the Plaintiff attempted to raise in Mombasa ELC No. 5 of 2018 through an application to introduce a Counter - Claim. The court in that case rejected the attempt as belated. The Plaintiff then lodged Mombasa Civil Appeal No. E238 of 2024, which remained pending.
27. The Learned Counsel relied on the provision of Section 7 of the Civil Procedure Act, Cap. 21 and the principle in the case of:- “Henderson – Versus - Henderson (1843–60) All E.R. 378”, arguing that any issue which “might and ought” to have been raised in the earlier suit is deemed to have been directly and substantially in issue. The Plaintiff, having failed to raise the purchase claim when he ought to have, is now barred by res judicata.
28. Secondly, on whether the suit offended the doctrine of sub judice. The Learned Counsel cited the provision of Section 6 of the Civil Procedure Act, Cap. 21 and the decisions in the case of:- “Wainaina – Versus - Waibara (Civil Appeal 252 of 2023) [2024] KEHC 9501 and Kenya National Commission on Human Rights – Versus - Attorney General [2020] eKLR”, emphasizing that no court should proceed with a matter where the same issues are already pending before another court of competent jurisdiction. Since the Plaintiff/Respondent’s appeal, Civil Appeal No. E238 of 2024, concerned the same Sale Agreement and parcel of land, the present suit offends the sub judice rule.
29. Finally, whether the suit constituted forum shopping and an abuse of the court process. The Learned Counsel maintained that if the appeal were to succeed, the issue of the Sale Agreement dated 10th May 2021 would be revived before the Mombasa ELC, resulting in parallel proceedings on the same subject matter before courts of concurrent jurisdiction, contrary to the principle of judicial economy.
30. Citing the case of:- “Omar t/a Sabrin Shop – Versus - Highrise Commodities Ltd (Civil Appeal E291 of 2023) [2024] KEHC 6177” and Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited [2009] eKLR”, the Counsel argued that the Plaintiff’s conduct amounted to forum shopping and an abuse of the court process, intended to re - litigate matters conclusively determined and to embarrass the judicial process.
31. In conclusion, Counsel submitted that the current suit is a “textbook case” of res judicata and, in the alternative, sub judice. He urged the Court to strike out the suit in its entirety with costs to the Defendant, terming it frivolous, vexatious, and a clear waste of judicial time.
B. The Written Submissions by the Plaintiff/Respondent
32. Learned Counsel for the Plaintiff/Respondent, Messrs. Matoke D & Company Advocates, filed written submissions dated 20th August 2025 in opposition to the Defendant/Applicant’s Notice of Motion dated 2nd July 2025. Counsel identified four key issues for determination:
i. Whether an application can be filed in place of a preliminary objection;
ii. Whether the Plaintiff/Respondent can be denied substantive justice on the basis of procedural technicalities;
iii. Whether the Defendant/Applicant is entitled to the reliefs sought; and
iv. Who should bear the costs of the application.
33. On the first issue. The Learned Counsel averred that the Defendant/Applicant’s Notice of Motion application was misconceived, frivolous, and incompetent, arguing that issues of a permanent or substantive nature—such as striking out a suit—should be raised through a preliminary objection, not by way of an interlocutory application. To buttress on this point, he relied on the case of:- “Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors Ltd [1969] EA 696 and Attorney General & Another v. Andrew Maina Githinji & Another [2016] eKLR, Counsel reiterated that a proper preliminary objection must raise a pure point of law capable of disposing of a matter without the need for factual ascertainment. Therefore, the application fell short of that threshold and amounted to an abuse of process.
34. Further, the Learned Counsel made reference to the Plaintiff’s Replying Affidavit sworn on 29th July 2025 to argue that the Defendant/Applicant had, on 10th May 2021, while Mombasa ELC No. 5 of 2018 was pending, approached the Plaintiff/Respondent and sold him the suit property for a sum of Kenya Shillings One Million Seventy Three Thousand Five Hundred and Seventy Hundred (Kshs. 1,073,570/=). The Plaintiff/Respondent was made to believe that the sale had amicably settled the Mombasa dispute. However, the Defendant/Applicant proceeded to prosecute the earlier case to conclusion without notifying the Plaintiff/Respondent, culminating in judgment on 20th January 2022.
35. It was submitted that the Defendant/Applicant failed to rebut those allegations by producing any affidavit of service proving that the Plaintiff had been notified of the hearing date in the earlier suit. Counsel urged the Court to infer that no such notice existed and that the Defendant’s submissions were therefore misleading.
36. On the second issue. The Learned Counsel invoked the provision of Articles 50(1) and 159 (2)(d) of the Constitution of Kenya, 2010, urging the Court to prioritize substantive justice over procedural technicalities. Referring to the case of:- “Judicial Service Commission – Versus - Mbalu Mutava [2015] eKLR and Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others [2014] eKLR”, Counsel argued that shutting out the Plaintiff’s claim at an interlocutory stage would amount to unjustly denying him his right to a fair hearing and access to justice.
37. On the question of res judicata and sub judice. The Learned Counsel contended that the Defendant/Applicant’s position was contradictory and amounts to forum shopping. The Defendant/Applicant, in earlier pleadings filed in Mombasa ELC No. 5 of 2018, had expressly stated that the issue of the sale agreement was distinct from the earlier ownership dispute, and that the Plaintiff/Respondent’s remedy lay in filing a fresh suit. The Defendant/Applicant could not now be allowed to approbate and reprobate on the same issue.
38. The Counsel distinguished the present claim from the Mombasa case, noting that the earlier suit concerned trespass and ownership, whereas the current one seeks specific performance of a sale agreement executed on 10th May 2021—an entirely new cause of action arising after the previous proceedings had commenced. The two suits therefore do not involve the same cause of action or directly and substantially similar issues, rendering the doctrines of res judicata and sub judice inapplicable.
39. On the issue of costs. The Counsel cited the case of:- “Republic – Versus - Rosemary Wairimu Munene (Ex - Parte Applicant) – Versus - Ihururu Dairy Farmers Co-operative Society Limited (JR No. 6 of 2004) and “Haraf Traders Limited – Versus - Narok County Government [2022] eKLR”, emphasizing that costs are discretionary and meant to compensate the successful party, not to punish the losing party.
40. In conclusion, Counsel averred that the Defendant/Applicant’s Notice of Motion application dated 2nd July 2025 was devoid of merit, procedurally defective, and amounts to an abuse of the court process. He urged the Court to dismiss the application in its entirety with costs to the Plaintiff/Respondent, arguing that the issues raised therein are best determined through a full hearing of the main suit on 1st December 2025 where both parties would had the opportunity to present their evidence on the merits.
V. Analysis and Determination
41. I have keenly assessed and considered the filed pleadings being mainly the said Notice of Motion application dated 2nd July 2025, the annexure thereof, the written Submissions in support of the Application, the myriad authorities cited, the provision of the Constitution of Kenya, 2010 and the statures.
42. For the Honourable Court to arrive at an informed, reasonable and fair decision, the following three (3) issues fall for determination in the application: _
a) Whether the Notice of Motion application dated 2nd July 2025 has any merit to wit the Applicant have made a case to strike out the Plaint.
b) Whether the parties herein are entitled to the reliefs sought; and
c) Who bears the costs of the application?
ISSUE No. a). Whether the Notice of Motion application dated 2nd July 2025 has any merit to wit the Applicant have made a case to strike out the Plaint.
27. Under this Sub – heading, there is only a single issue for the consideration by this Court. Nonetheless, before embarking on the full analysis of the matter under this Sub – title, the Honourable Court will provided the full pleading filed by the Plaintiff/Respondent herein. The suit before court was initiated through a Plaint dated 28th January 2025 the Plaintiff/Respondent herein through the Law firm of Matoke D and Co. Advocates as follows:-
a) The Plaintiff is a male adult of sound, mind residing and/or working for gain in Kwale County within the jurisdiction of this Honorable Court. His address of service for purposes of this suit shall henceforth be care of MATOKE D & COMPANY ADVOCATES, SAMBURU MARKET, OPPOSITE DIANI POLICE MOMBASA - LUNGALUNGA ROAD, P.O BOX 111 -80400 UKUNDA, TEL NO: 0799355574, EMAIL: matokedevtnah@gmail.com.
b) The Defendant is a male adult of sound mind, residing and or working for gain in Kilifi County within the Republic of Kenya. Service of summons upon the Defendant to be effected through the plaintiff''s advocates offices a foresaid.
c) At all material times to this suit the Defendant is the proprietor of PLOT NO. KWALE/UKUNDA/1009 situated at Mwamambi village, Diani Location, Kwale County within the jurisdiction of this Honorable Court.
d) The Plaintiff averred that on or about the 10th. May, 2021, the Defendant approached the Plaintiff and offered to sell to the Plaintiff 167 M² of the Plot mentioned in paragraph 3 above suit property herein. The plaintiff accepted and an agreement was prepared and executed by KANYI J & CO. ADVOCATES. The agreement was executed on the said date.
e) The Plaintiff averred that upon the signing of the foresaid agreement he paid the defendant a consideration of Kshs. 1,073,570/= through the firm of KANYI J. & CO. ADVOCATES through KCB BANK A/C NO. 1107605784. However, the Plaintiff efforts to acquire title deed in respect of the portion of land purchased from the Defendant have been stalled by the Defendant.
f) The Plaintiff stated that the Defendant''s gesture and/or actions as exhibited in paragraph 5 above are illegal as it deprives the Plaintiff his right of being registered as the lawful owner of the suit property. PARTICULARS OF THE ILLEGALITY ON THE PART OF THE DEFENDANT Failing to execute transfer documents and/or completion documents to enable the Plaintiff process for a title deed in respect of the suit property.
g) The Plaintiff averred that the whole of Plot NO. KWALE/UKUNDA/1009 has a value of over 20 million, hence this Honorable Court has a jurisdiction to entertain this suit.
h) The Plaintiff''s claimed was for this Honorable Court to issue orders for specific performance against the Defendant to enable the Plaintiff obtain completion documents from the Defendant which documents are necessary for the process of title deed in respect of the suit property.
i) The Plaintiff averred that there was no suit pending, nor previously determined before any Court of Law between the Plaintiff and Defendants touching on the same subject matter.
j) The cause of action arose in Mwamambi village, Diani location, Kwale County within the jurisdiction of this Honorable court.
k) Despite of demand and notice of intention to sue being issued to the Defendant, the Defendant has refused, failed and/or neglected to issue the Plaintiff completion documents hence this suit. REASONS WHEREFORE the Plaintiff prays for judgement against the Defendant for
i. An order for permanent injunction to restrain the Defendant by himself, his servants, agents, workmen and/or any other person whomsoever and whatsoever from sub-diving, selling, disposing of, transferring, alienating the portion of land occupied by the Plaintiff (167 m²) of KWALE/UKUNDA/1009, evicting the Plaintiff and/or in any other way interfering with the suit property.
ii. A declaration be issued to the effect that the Plaintiff is the bona - fide owner of 167 m² part of PLOT NO. KWALE/UKUNDA/1009.
iii. A mandatory order to issue against Defendant to execute all necessary documents, including but not limited to the application for consent of the Land Control Board and transfer forms to facilitate effecting of transfer of 167 m² of PLOT NO. KWALE/UKUNDA/1009.
iv. An order be issued directing the Land Registrar Kwale County to register the Plaintiff as lawful owner of 162 m² part of PLOT NO. KWALE/UKUNDA/1009 and issue a title deed to that effect.
v. General damages.
vi. Costs and interests of this suit at Court rates.
vii. THAT this honorable Court at its own discretion be pleased to issue any other order that it deems fit and just to grant for the interest of justice.
28. Now back to the analysis under this sub – heading. Essentially, that is on striking the entire Plaint as instituted by the Plaintiff/Respondent herein for offending certain provision of the law. The striking out of the suits are governed under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010. It does allow a party to apply for the striking out of a suit. The same is drawn as follows: -
Striking out pleadings [Order 2, rule 15.]
(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—
(a) It discloses no reasonable cause of action or defence in law; or
(b) It is scandalous, frivolous or vexatious; or
(c) It may prejudice, embarrass or delay the fair trial of the action; or
(d) It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
29. From the myriads of authorities, it is settled law that the power and Jurisdiction of the Court to strike out pleadings is discretionary. It must be exercised judicially and be used sparingly and cautiously. That is the case as it is exercised without the court being fully informed on the merits of the case through discovery and oral evidence. The leading and still very relevant case on this front was that of “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1982] KLR 1”. Madan JA, stated:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”
30. Further to that, in the case of: - “Co - operative Merchant Bank Limited – Versus - George Fredrick Wekesa (Civil Appeal No. 54 of 1999)” the Court of Appeal stated:-
“Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the Appellant’s Defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court.”
31. Additionally, in the case of: - “Yaya Towers Limited – Versus - Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000)” the same court expressed itself thus: -
“A Plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the Defendant (Plaintiff) can demonstrate shortly and conclusively that the Plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial..........It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.”
32. The main reason why the applicant has sought for this suit to be struck out is their claim that the suit is res judicata and sub judice. The Black’s law Dictionary 10th Edition defines “Res judicata” as:-
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
33. The doctrine of “Res judicata” is codified at the provision of Section 7 of the Civil Procedure Act, Cap. 21 which provides as follows: -
“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.”
Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
34. For a suit to be declared res-judicata, the following must be proved:-
(i) The former suit must have been decided.
(ii) The competence of a court which decides the former suit must be determined irrespective of any provision as to right of appeal.
(iii) The former suit must have been alleged by one party and denied or admitted expressly or impliedly by the other party.
(iv) Any matter which might and ought to have made a ground of defence or attack in the former suit shall be deemed to have been directly and substantially in issue in the former suit.
(v) The parties litigating must be the same.
35. For res judicata to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. See “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR”. Res judicata operates as a complete estoppel against any suit that runs afoul of it. See “Maithene Malindi Enterprises Limited – Versus - Kaniki Karisa Kaniki & 2 others [2018] eKLR”.
36. Res judicata operates as a bar to subsequent proceedings involving same issue which had been finally and conclusively decided by a competent court in a prior suit between the same parties. In case of:- “John Florence Maritime Services Limited (Supra)” the Court of Appeal stated:-
“………. Res judicata is a subject which is not at all novel. It is a discourse on which a lot of judicial ink has been spilt and is now sufficiently settled. We therefore do not intend to re-invent any new wheel. We can however do no better than reproduce the re-indention of the doctrine many centuries ago as captured in the case of Henderson – Versus - Henderson [1843] 67 ER 313: -
“…..where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time ….”
…. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.”
37. 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. In essence, if both Courts were to proceed with the matters on merit and determine them, without deference to the former, they would arrive at similar or different results on the same rights claimed by the same parties and there would be a duplication of the reliefs or a conflict of them, which would be a recipe for confusion and chaos in the legal system. In the alternative of the scenario immediately above, where one of the Courts determined the matter before it the one still pending would be res judicata. It is governed under the provision of Section 6 of the Civil Procedure Act, Cap. 21 which bars any court from engaging in matters sub judice before them. 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.”
38. In the case of:- “Republic – Versus - Paul Kihara Kariuki, Attorney General & 2 others Ex - Parte Law Society of Kenya [2020] eKLR” Justice Mativo (as he then was) stated as follows: -
“………there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a Court or Judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.”
39. The import of the concept is that as soon as the Court finds a matter sub judice it stays immediately the proceedings until the prior one is heard and determined. On this point, the “Supreme Court of Kenya in Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)”, stated therein 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.”
40. Therefore, based on these legal reasoning, the Honourable Court holds that the application by the Defendant/Applicant has merit and ought to be considered as prayed.
ISSUE No. b). Whether the parties are entitled to the reliefs sought
41. Under this sub - heading, the Honourable Court now proceeds to apply the established legal principles to the instant application and determine whether the Plaintiff’s suit, Kwale ELC No. E008 of 2025, is barred by “the doctrines of res judicata and sub judice”, as contended by the Defendant/Applicant.
42. It is not in dispute that the Plaintiff/Respondent herein was a party to “Mombasa ELC No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Hezron Kamunya & Others”, wherein the subject matter was the parcel of land known as Kwale/Ukunda/1009. In that suit, the present Defendant/Applicant was the Plaintiff, while the present Plaintiff/Respondent was the 2nd Defendant. The Environment and Land Court at Mombasa rendered its Judgment on 20th January 2022, conclusively determining ownership of the suit property and ordering the Plaintiff/Respondent (then 2nd Defendant) to vacate the land forthwith.
43. Subsequently, the same Plaintiff lodged an appeal against that decision in Mombasa Civil Appeal No. E238 of 2024, which remains pending before the Court of Appeal. The subject of that appeal, as evidenced by the Memorandum of Appeal annexed as “JM – 1”, is the propriety of the Mombasa ELC Judgment in respect of Kwale/Ukunda/1009. It therefore follows that the ownership, occupation, and proprietary interests in the same parcel are directly and substantially in issue before both this Court and the appellate court.
44. The Plaintiff/Respondent’s contention that this suit is premised on a subsequent sale agreement dated 10th May 2021, allegedly executed during the pendency of Mombasa ELC No. 5 of 2018, does not alter the character of the dispute. The said agreement relates to the same parcel of land, and the Plaintiff/Respondent now seeks orders of specific performance compelling the Defendant/Applicant to transfer ownership of the same property. The cause of action and reliefs sought herein therefore arise from, and are inseparably linked to, the same property rights already adjudicated upon in the prior suit.
45. The doctrine of res judicata, codified under Section 7 of the Civil Procedure Act, is designed to bar re-litigation of issues that have been heard and finally determined by a court of competent jurisdiction. The Supreme Court in the case of:- “John Florence Maritime Services Limited & another (Supra)” reaffirmed that the doctrine applies not only to matters actually determined, but also to issues that ought to have been raised for determination in the earlier proceedings. The court stated:
“The rule on res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from being vexed, haunted and hounded by issues and suits that have already been determined by a competent court.”
46. Similarly, in the case of:- “Henderson v. Henderson (Supra)”, the Court held that parties are bound to bring forward their whole case, and any issue which could and ought to have been raised in earlier proceedings is deemed to have been determined. Applying that principle here, the Plaintiff/Respondent, who claims to have purchased the suit property while the earlier proceedings were ongoing, ought to have presented that agreement before the Mombasa ELC either by way of an amended defence or counterclaim. Having failed to do so, he cannot now re-litigate the same ownership claim through a fresh suit under the guise of enforcing the sale agreement.
47. The court in the case of:- “Independent Electoral & Boundaries Commission (Supra)” distilled five conjunctive elements for the application of res judicata:
a. the matter directly and substantially in issue must be the same;
b. the former suit must have been between the same parties or parties litigating under the same title;
c. the issue must have been heard and finally determined;
d. the court that heard the matter must have been competent; and
e. the parties must be litigating under the same title;
f. All these elements are satisfied in the present case.
48. First, the subject matter in both suits is the same parcel of land—Kwale/Ukunda/1009. Second, the parties are identical, save that their designations have changed. Third, the Mombasa ELC was a court of competent jurisdiction which rendered a final judgment on the proprietary interests in the property. Fourth, the pending appeal in Civil Appeal No. E238 of 2024 does not nullify the finality of the trial court’s decision; the judgment remains binding until set aside by the appellate court. The Plaintiff’s attempt to reopen the matter before this Court therefore offends both the doctrine of res judicata and the rule of sub judice.
49. The principle of sub judice, as embodied in Section 6 of the Civil Procedure Act, prohibits parallel proceedings over the same matter in multiple courts. The Court of Appeal in the case of:- “Wainaina – Versus - Waibara (Civil Appeal 252 of 2023) [2024] KEHC 9501” held that once a dispute has been lodged in a competent court and remains pending on appeal, no other court of concurrent jurisdiction should entertain the same issue, lest the judicial process be brought into disrepute. To allow this suit to proceed while the appeal is pending would create a risk of conflicting outcomes, undermining the integrity and finality of judicial decisions.
50. Moreover, the Plaintiff/Respondent’s conduct in filing a fresh suit over the same property while an appeal is pending constitutes forum shopping and abuse of process, as defined in the case of:- “Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited & 2 others [2009] eKLR”, where the Court of Appeal held:
“A litigant who persistently and without reasonable grounds re-litigates issues already decided, or engages in proceedings meant to harass, irritate or delay, abuses the court process.”
51. This Court finds that the Plaintiff/Respondent’s attempt to revive the ownership dispute through a claim of specific performance amounts to a collateral attack on a subsisting Judgment, and thus an abuse of process. In the totality of the circumstances, this Court is satisfied that the Plaintiff’s suit is res judicata, and in the alternative, sub judice, given the pending appellate proceedings in Civil Appeal No. E238 of 2024. Allowing the suit to proceed would amount to re-opening matters conclusively determined by a court of competent jurisdiction, contrary to the public policy that – “litigation must come to an end”.
ISSUE No. c). Who will bear the Costs of the Objection?
52. It is now well established that the issue of Costs is the discretion of Courts. Costs is an award that a party is granted at the conclusion of any legal action or proceedings of any litigation. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013) provides: -
“(1) The award of costs is at the discretion of the Court.
(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”
53. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of:- “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: -
“………. the basic rule on attribution of costs is that costs follow the event…...it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”.
54. In the instant case, taking that the Defendant/Applicant has succeeded on the fundamental threshold of res judicata and sub judice, they are entitled to costs thereof.
VI. Conclusions & Disposition
55. Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court on Preponderance of Probabilities and the balance of convenience reaches at the following findings. These are: -
a. THAT the Defendant/Applicant’s Notice of Motion dated 2nd July 2025 is hereby allowed.
b. THAT the Plaintiff’s suit in Kwale ELC No. E008 of 2025 is hereby struck out in its entirety for being res judicata and sub judice.
c. THAT the Plaintiff shall bear the costs of the application and the entire suit.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ………… 12TH ………… DAY OF …......... NOVEMBER …………. 2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
M/s. Matoke for the Plaintiff/Respondent.
b) Mr. Maundu Advocate for the Defendant/Applicant.
'1. Before the Honourable Court for its determination is a Notice of Motion application dated 2nd July 2025. It was filed by JUMA MOHAMED MWACHIHI the Defendant/Applicant herein. The application was brought under the provision of Sections 1A, 1B, 3, 3A, 6 and 7 of the Civil Procedure Act, Cap 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010.
2. Upon service, the Plaintiff/Respondent while opposing the application filed replies through a Replying Affidavit dated 29th July, 2025. The Honourable Court will be dealing with the issues at a later stage of this Ruling.
II. The Defendant/Applicant’s case
3. The Defendant/Applicant sought for the following orders: -
a) That this suit be stayed or struck out on the grounds that it is sub judice or Res Judicata in view of Mombasa ELCC No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Mwangi Mburu & 9 Others.
b) That the costs of this application be provided for.
4. The application was premised on the grounds, testimonial facts and the averments made out under the supported by an 8 Paragraphed Supporting Affidavit sworn by Mr. JUMA MOHAMED MWACHIHI together with an annexture marked as “JM – 1” annexed herein. He averred as follows that:-
a) He was the Defendant/Applicant in this matter and therefore competent and duly authorized to swear the said affidavit on his own behalf.
b) The Plaintiff/Respondent herein had instituted the current proceedings, being “Kwale Environment and Land Court Case No. E008 of 2025”, which in his view raised issues that were substantially similar to those in the case of “Mombasa ELC Case No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Hezron Kamunya & Others”, a matter in which he was the Plaintiff. In support of this contention, the Defendant annexed copies of the pleadings and rulings in the said Mombasa case, collectively marked as “JM–1.”
c) He further stated that in the said Mombasa matter, the Honourable Court delivered a ruling on 31st October 2024, addressing the same subject matter and legal questions as those now placed before this Court.
d) Being dissatisfied with the outcome of that ruling, the Plaintiff in the present matter lodged an appeal, being Court of Appeal Civil Appeal No. E238 of 2024, which remained pending determination before the Court of Appeal.
e) It was therefore his position that the issues raised in the present suit was res judicata and, in light of the pending appeal, also sub judice, as the parties were the same or substantially the same and litigating under the same title.
f) Allowing this suit to proceed in its present form would amount to forum shopping and an abuse of the court process, as it seeks to reopen issues already determined or currently under active consideration by a competent court.
g) Consequently, he urged this Honourable Court to find the suit incompetent and to either stay or strike it out in the interest of justice, judicial economy, and to prevent the multiplicity of proceedings.
h) In conclusion, he affirmed that the contents of his affidavit were true to the best of his knowledge, belief, and understanding, and that his opposition to the suit was made in good faith and in the proper exercise of his right to defend the integrity of prior court determinations.
III. The responses by the Plaintiff/Respondent
5. The Plaintiff/Respondent responded to the Notice of Motion dated 2nd July 2025 through a 22 Paragraphed Replying Affidavit sworn and dated on 29th July 2025 by SAMUEL MWANGI MBURU together with annextures marked as “SMM – 1 to 5” where he deposed that: -
a) He was an adult male of sound mind, the Plaintiff/Respondent herein, seized with material facts of this case and therefore competent to swear this Affidavit.
b) He had read, understood and where in doubt the contents of the Defendant/Applicant''s Application dated 2nd July, 2025 had been explained to him by his Advocates on record and therefore wish to respond to allegations wherein as follows;
c) He was advised that that the Application dated 2nd July, 2025 contravened the mandatory provisions of Article 159(2)(b) of the Constitution of Kenya 2010.
d) He was further informed that substantive justice dictated that he be given an opportunity to be heard on merit, rather than shutting the doors of justice for him at an interlocutory stage.
e) In light of Paragraph 4 above the Application dated 2nd July, 2025 contravened the mandatory provisions of Article 50(1) of the Constitution of Kenya 2010.
f) The Defendant/Applicant had filed a Statement of Defence before this Honourable Court raising issues that ought to be canvassed at the full tríal of this suit. Annexed herewith was a copy of the said Statement of Defence marked as "SMМ - 1".
g) Among the issues contemplated in Paragraph 6 above, it was the jurisdiction of this Honourable Court to entertain this matter which issue could only be canvassed during the full trial of this suit.
h) On or about 10th May, 2021 while Mombasa ELC 5 of 2018 was still pending in Court, the Defendant/Applicant approached him with an intention of compromising the said suit in which he offered to sell to him the suit property.
i) He accepted the said offer and a sale agreement was executed between him and the Defendant/Applicant herein, where he paid a sum of Kenya Shillings One Million, Seventy Three Thousand, Five Hundred and Seventy (Kshs. 1,073,570/=) being full purchase price of the suit property. Annexed herewith a copy of the said sale agreement marked as "SMM - 2".
j) By signing the sale agreement mentioned in Paragraph 8 above, he was made to believe that Mombasa ELC 5 of 2018 had been settled however, the Defendant/Applicant proceeded with the full hearing of the matter; without my knowledge and secured a Judgement to that effect, which judgement was delivered on 20th January, 2022. Annexed herewith a copy of the said Judgement marked as "SMM - 3".
k) The said Judgement never talked about the sale of the suit property by the Defendant/Applicant to the Plaintiff/Respondent, hence the sale in question, was a new or fresh issue which ought to be heard and determined by this Honourable Court on merit.
l) In addition to Paragraph 10 above, the Defendant/Applicant had sworn Affidavits in Mombasa ELC No. 5 of 2018 advising him that the best forum to articulate and/or pursue specific performance on the sale agreement dated 10th May, 2021 was to file a new and/or fresh suit which advise he did follow by filing this suit. Annex herewith a copy of the said Affidavit(s) marked as "SMM - 4 (a) and (b)".
m) In light of Paragraph 11 above, the Defendant/Applicant could not had his cake and eat it as well by blowing both hot and cold at the same time.
n) The Defendant/Applicant was not specific on which orders he was actually seeking before this Honourable Court, whether he wanted the suit to be stayed or struck out as the said reliefs could not be given simultaneously.
o) Neither had it been exactly explained which between “the Doctrines of Sub - Judice and Res Judicata” does the Defendant/Applicant want the instant suit struck out nor has it been explained whether and how the suit herein was “Sub - judice or Res – Judicata”.
p) The Civil Appeal No. E238 of 2024 was equally distinct from the suit herein and any decision that would be rendered wherein would not at all affect this suit.
q) It was manifested from the Statement of Defence and Affidavits by the Defendant/Applicant mentioned in Paragraphs 6 and 11 above that it was not in dispute that the suit property was no longer available for the Defendant/Applicant.
r) The application never met the requisite threshold required for grant of stay of proceedings and it is for the interest of justice that the same be dismissed with costs to him.
s) The Pre - trial directions had since been taken in this matter, and a hearing of the main suit reserved for 1st December, 2025 which date was taken on consent of parties herein therefore, the instant application was an after-thought hence the same ought to be dismissed with costs to him. Annexed herewith a copy of an extract from CTS to that effect which he marked as "SMM - 5”.
t) There was no prejudice that would be subjected to the Defendant/Applicant if the Application was dismissed and the matter proceeded to full hearing as scheduled.
u) The application had been filed in UTMOST bad faith, with undue delay and it was for the interest of justice that the same be dismissed.
IV. Submissions
23. On 31st July, 2025 while all the parties were present in Court, they were directed to have the Notice of application dated 2nd July 2025 be disposed of by way of written submissions. On 25th September 2025 the matter was mentioned to confirm filing of the said submissions. Pursuant to that, all the parties stated that they had complied and a ruling date was reserved by Court accordingly.
A. The Written Submissions by the Defendant/Applicant
24. The Defendant/Applicant though the Law of Messrs. Ameli Inyangu & Partners, filed their written submissions dated 1st August 2025 in support of the Notice of Motion dated 2nd July 2025. Mr. Maundu Advocate commenced the submissions by providing a brief back ground of the matter. The submissions could be summarized into three (3) key issues for determination:
25. Firstly, on whether the present suit was barred by Res Judicata. The Learned Counsel submitted that the present suit, Kwale ELC No. E008 of 2025 — was grounded on the same cause of action previously litigated in “Mombasa ELC No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Hezron Kamunya & Others”, in which Judgment was rendered on 20th January 2022. The Plaintiff/Respondent herein, who was a Defendant/Applicant in that case, had been found to be a trespasser on the suit property known as Kwale/Ukunda/1009 and was ordered to vacate.
26. The Learned Counsel further averred that the Plaintiff/Respondent’s current claim was based on a Sale Agreement dated 10th May 2021, terms and conditions for 167 square metres of the same parcel, was the same issue the Plaintiff attempted to raise in Mombasa ELC No. 5 of 2018 through an application to introduce a Counter - Claim. The court in that case rejected the attempt as belated. The Plaintiff then lodged Mombasa Civil Appeal No. E238 of 2024, which remained pending.
27. The Learned Counsel relied on the provision of Section 7 of the Civil Procedure Act, Cap. 21 and the principle in the case of:- “Henderson – Versus - Henderson (1843–60) All E.R. 378”, arguing that any issue which “might and ought” to have been raised in the earlier suit is deemed to have been directly and substantially in issue. The Plaintiff, having failed to raise the purchase claim when he ought to have, is now barred by res judicata.
28. Secondly, on whether the suit offended the doctrine of sub judice. The Learned Counsel cited the provision of Section 6 of the Civil Procedure Act, Cap. 21 and the decisions in the case of:- “Wainaina – Versus - Waibara (Civil Appeal 252 of 2023) [2024] KEHC 9501 and Kenya National Commission on Human Rights – Versus - Attorney General [2020] eKLR”, emphasizing that no court should proceed with a matter where the same issues are already pending before another court of competent jurisdiction. Since the Plaintiff/Respondent’s appeal, Civil Appeal No. E238 of 2024, concerned the same Sale Agreement and parcel of land, the present suit offends the sub judice rule.
29. Finally, whether the suit constituted forum shopping and an abuse of the court process. The Learned Counsel maintained that if the appeal were to succeed, the issue of the Sale Agreement dated 10th May 2021 would be revived before the Mombasa ELC, resulting in parallel proceedings on the same subject matter before courts of concurrent jurisdiction, contrary to the principle of judicial economy.
30. Citing the case of:- “Omar t/a Sabrin Shop – Versus - Highrise Commodities Ltd (Civil Appeal E291 of 2023) [2024] KEHC 6177” and Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited [2009] eKLR”, the Counsel argued that the Plaintiff’s conduct amounted to forum shopping and an abuse of the court process, intended to re - litigate matters conclusively determined and to embarrass the judicial process.
31. In conclusion, Counsel submitted that the current suit is a “textbook case” of res judicata and, in the alternative, sub judice. He urged the Court to strike out the suit in its entirety with costs to the Defendant, terming it frivolous, vexatious, and a clear waste of judicial time.
B. The Written Submissions by the Plaintiff/Respondent
32. Learned Counsel for the Plaintiff/Respondent, Messrs. Matoke D & Company Advocates, filed written submissions dated 20th August 2025 in opposition to the Defendant/Applicant’s Notice of Motion dated 2nd July 2025. Counsel identified four key issues for determination:
i. Whether an application can be filed in place of a preliminary objection;
ii. Whether the Plaintiff/Respondent can be denied substantive justice on the basis of procedural technicalities;
iii. Whether the Defendant/Applicant is entitled to the reliefs sought; and
iv. Who should bear the costs of the application.
33. On the first issue. The Learned Counsel averred that the Defendant/Applicant’s Notice of Motion application was misconceived, frivolous, and incompetent, arguing that issues of a permanent or substantive nature—such as striking out a suit—should be raised through a preliminary objection, not by way of an interlocutory application. To buttress on this point, he relied on the case of:- “Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors Ltd [1969] EA 696 and Attorney General & Another v. Andrew Maina Githinji & Another [2016] eKLR, Counsel reiterated that a proper preliminary objection must raise a pure point of law capable of disposing of a matter without the need for factual ascertainment. Therefore, the application fell short of that threshold and amounted to an abuse of process.
34. Further, the Learned Counsel made reference to the Plaintiff’s Replying Affidavit sworn on 29th July 2025 to argue that the Defendant/Applicant had, on 10th May 2021, while Mombasa ELC No. 5 of 2018 was pending, approached the Plaintiff/Respondent and sold him the suit property for a sum of Kenya Shillings One Million Seventy Three Thousand Five Hundred and Seventy Hundred (Kshs. 1,073,570/=). The Plaintiff/Respondent was made to believe that the sale had amicably settled the Mombasa dispute. However, the Defendant/Applicant proceeded to prosecute the earlier case to conclusion without notifying the Plaintiff/Respondent, culminating in judgment on 20th January 2022.
35. It was submitted that the Defendant/Applicant failed to rebut those allegations by producing any affidavit of service proving that the Plaintiff had been notified of the hearing date in the earlier suit. Counsel urged the Court to infer that no such notice existed and that the Defendant’s submissions were therefore misleading.
36. On the second issue. The Learned Counsel invoked the provision of Articles 50(1) and 159 (2)(d) of the Constitution of Kenya, 2010, urging the Court to prioritize substantive justice over procedural technicalities. Referring to the case of:- “Judicial Service Commission – Versus - Mbalu Mutava [2015] eKLR and Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others [2014] eKLR”, Counsel argued that shutting out the Plaintiff’s claim at an interlocutory stage would amount to unjustly denying him his right to a fair hearing and access to justice.
37. On the question of res judicata and sub judice. The Learned Counsel contended that the Defendant/Applicant’s position was contradictory and amounts to forum shopping. The Defendant/Applicant, in earlier pleadings filed in Mombasa ELC No. 5 of 2018, had expressly stated that the issue of the sale agreement was distinct from the earlier ownership dispute, and that the Plaintiff/Respondent’s remedy lay in filing a fresh suit. The Defendant/Applicant could not now be allowed to approbate and reprobate on the same issue.
38. The Counsel distinguished the present claim from the Mombasa case, noting that the earlier suit concerned trespass and ownership, whereas the current one seeks specific performance of a sale agreement executed on 10th May 2021—an entirely new cause of action arising after the previous proceedings had commenced. The two suits therefore do not involve the same cause of action or directly and substantially similar issues, rendering the doctrines of res judicata and sub judice inapplicable.
39. On the issue of costs. The Counsel cited the case of:- “Republic – Versus - Rosemary Wairimu Munene (Ex - Parte Applicant) – Versus - Ihururu Dairy Farmers Co-operative Society Limited (JR No. 6 of 2004) and “Haraf Traders Limited – Versus - Narok County Government [2022] eKLR”, emphasizing that costs are discretionary and meant to compensate the successful party, not to punish the losing party.
40. In conclusion, Counsel averred that the Defendant/Applicant’s Notice of Motion application dated 2nd July 2025 was devoid of merit, procedurally defective, and amounts to an abuse of the court process. He urged the Court to dismiss the application in its entirety with costs to the Plaintiff/Respondent, arguing that the issues raised therein are best determined through a full hearing of the main suit on 1st December 2025 where both parties would had the opportunity to present their evidence on the merits.
V. Analysis and Determination
41. I have keenly assessed and considered the filed pleadings being mainly the said Notice of Motion application dated 2nd July 2025, the annexure thereof, the written Submissions in support of the Application, the myriad authorities cited, the provision of the Constitution of Kenya, 2010 and the statures.
42. For the Honourable Court to arrive at an informed, reasonable and fair decision, the following three (3) issues fall for determination in the application: _
a) Whether the Notice of Motion application dated 2nd July 2025 has any merit to wit the Applicant have made a case to strike out the Plaint.
b) Whether the parties herein are entitled to the reliefs sought; and
c) Who bears the costs of the application?
ISSUE No. a). Whether the Notice of Motion application dated 2nd July 2025 has any merit to wit the Applicant have made a case to strike out the Plaint.
27. Under this Sub – heading, there is only a single issue for the consideration by this Court. Nonetheless, before embarking on the full analysis of the matter under this Sub – title, the Honourable Court will provided the full pleading filed by the Plaintiff/Respondent herein. The suit before court was initiated through a Plaint dated 28th January 2025 the Plaintiff/Respondent herein through the Law firm of Matoke D and Co. Advocates as follows:-
a) The Plaintiff is a male adult of sound, mind residing and/or working for gain in Kwale County within the jurisdiction of this Honorable Court. His address of service for purposes of this suit shall henceforth be care of MATOKE D & COMPANY ADVOCATES, SAMBURU MARKET, OPPOSITE DIANI POLICE MOMBASA - LUNGALUNGA ROAD, P.O BOX 111 -80400 UKUNDA, TEL NO: 0799355574, EMAIL: matokedevtnah@gmail.com.
b) The Defendant is a male adult of sound mind, residing and or working for gain in Kilifi County within the Republic of Kenya. Service of summons upon the Defendant to be effected through the plaintiff''s advocates offices a foresaid.
c) At all material times to this suit the Defendant is the proprietor of PLOT NO. KWALE/UKUNDA/1009 situated at Mwamambi village, Diani Location, Kwale County within the jurisdiction of this Honorable Court.
d) The Plaintiff averred that on or about the 10th. May, 2021, the Defendant approached the Plaintiff and offered to sell to the Plaintiff 167 M² of the Plot mentioned in paragraph 3 above suit property herein. The plaintiff accepted and an agreement was prepared and executed by KANYI J & CO. ADVOCATES. The agreement was executed on the said date.
e) The Plaintiff averred that upon the signing of the foresaid agreement he paid the defendant a consideration of Kshs. 1,073,570/= through the firm of KANYI J. & CO. ADVOCATES through KCB BANK A/C NO. 1107605784. However, the Plaintiff efforts to acquire title deed in respect of the portion of land purchased from the Defendant have been stalled by the Defendant.
f) The Plaintiff stated that the Defendant''s gesture and/or actions as exhibited in paragraph 5 above are illegal as it deprives the Plaintiff his right of being registered as the lawful owner of the suit property. PARTICULARS OF THE ILLEGALITY ON THE PART OF THE DEFENDANT Failing to execute transfer documents and/or completion documents to enable the Plaintiff process for a title deed in respect of the suit property.
g) The Plaintiff averred that the whole of Plot NO. KWALE/UKUNDA/1009 has a value of over 20 million, hence this Honorable Court has a jurisdiction to entertain this suit.
h) The Plaintiff''s claimed was for this Honorable Court to issue orders for specific performance against the Defendant to enable the Plaintiff obtain completion documents from the Defendant which documents are necessary for the process of title deed in respect of the suit property.
i) The Plaintiff averred that there was no suit pending, nor previously determined before any Court of Law between the Plaintiff and Defendants touching on the same subject matter.
j) The cause of action arose in Mwamambi village, Diani location, Kwale County within the jurisdiction of this Honorable court.
k) Despite of demand and notice of intention to sue being issued to the Defendant, the Defendant has refused, failed and/or neglected to issue the Plaintiff completion documents hence this suit. REASONS WHEREFORE the Plaintiff prays for judgement against the Defendant for
i. An order for permanent injunction to restrain the Defendant by himself, his servants, agents, workmen and/or any other person whomsoever and whatsoever from sub-diving, selling, disposing of, transferring, alienating the portion of land occupied by the Plaintiff (167 m²) of KWALE/UKUNDA/1009, evicting the Plaintiff and/or in any other way interfering with the suit property.
ii. A declaration be issued to the effect that the Plaintiff is the bona - fide owner of 167 m² part of PLOT NO. KWALE/UKUNDA/1009.
iii. A mandatory order to issue against Defendant to execute all necessary documents, including but not limited to the application for consent of the Land Control Board and transfer forms to facilitate effecting of transfer of 167 m² of PLOT NO. KWALE/UKUNDA/1009.
iv. An order be issued directing the Land Registrar Kwale County to register the Plaintiff as lawful owner of 162 m² part of PLOT NO. KWALE/UKUNDA/1009 and issue a title deed to that effect.
v. General damages.
vi. Costs and interests of this suit at Court rates.
vii. THAT this honorable Court at its own discretion be pleased to issue any other order that it deems fit and just to grant for the interest of justice.
28. Now back to the analysis under this sub – heading. Essentially, that is on striking the entire Plaint as instituted by the Plaintiff/Respondent herein for offending certain provision of the law. The striking out of the suits are governed under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010. It does allow a party to apply for the striking out of a suit. The same is drawn as follows: -
Striking out pleadings [Order 2, rule 15.]
(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—
(a) It discloses no reasonable cause of action or defence in law; or
(b) It is scandalous, frivolous or vexatious; or
(c) It may prejudice, embarrass or delay the fair trial of the action; or
(d) It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
29. From the myriads of authorities, it is settled law that the power and Jurisdiction of the Court to strike out pleadings is discretionary. It must be exercised judicially and be used sparingly and cautiously. That is the case as it is exercised without the court being fully informed on the merits of the case through discovery and oral evidence. The leading and still very relevant case on this front was that of “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1982] KLR 1”. Madan JA, stated:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”
30. Further to that, in the case of: - “Co - operative Merchant Bank Limited – Versus - George Fredrick Wekesa (Civil Appeal No. 54 of 1999)” the Court of Appeal stated:-
“Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the Appellant’s Defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court.”
31. Additionally, in the case of: - “Yaya Towers Limited – Versus - Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000)” the same court expressed itself thus: -
“A Plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the Defendant (Plaintiff) can demonstrate shortly and conclusively that the Plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial..........It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.”
32. The main reason why the applicant has sought for this suit to be struck out is their claim that the suit is res judicata and sub judice. The Black’s law Dictionary 10th Edition defines “Res judicata” as:-
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
33. The doctrine of “Res judicata” is codified at the provision of Section 7 of the Civil Procedure Act, Cap. 21 which provides as follows: -
“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.”
Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
34. For a suit to be declared res-judicata, the following must be proved:-
(i) The former suit must have been decided.
(ii) The competence of a court which decides the former suit must be determined irrespective of any provision as to right of appeal.
(iii) The former suit must have been alleged by one party and denied or admitted expressly or impliedly by the other party.
(iv) Any matter which might and ought to have made a ground of defence or attack in the former suit shall be deemed to have been directly and substantially in issue in the former suit.
(v) The parties litigating must be the same.
35. For res judicata to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. See “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR”. Res judicata operates as a complete estoppel against any suit that runs afoul of it. See “Maithene Malindi Enterprises Limited – Versus - Kaniki Karisa Kaniki & 2 others [2018] eKLR”.
36. Res judicata operates as a bar to subsequent proceedings involving same issue which had been finally and conclusively decided by a competent court in a prior suit between the same parties. In case of:- “John Florence Maritime Services Limited (Supra)” the Court of Appeal stated:-
“………. Res judicata is a subject which is not at all novel. It is a discourse on which a lot of judicial ink has been spilt and is now sufficiently settled. We therefore do not intend to re-invent any new wheel. We can however do no better than reproduce the re-indention of the doctrine many centuries ago as captured in the case of Henderson – Versus - Henderson [1843] 67 ER 313: -
“…..where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time ….”
…. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.”
37. 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. In essence, if both Courts were to proceed with the matters on merit and determine them, without deference to the former, they would arrive at similar or different results on the same rights claimed by the same parties and there would be a duplication of the reliefs or a conflict of them, which would be a recipe for confusion and chaos in the legal system. In the alternative of the scenario immediately above, where one of the Courts determined the matter before it the one still pending would be res judicata. It is governed under the provision of Section 6 of the Civil Procedure Act, Cap. 21 which bars any court from engaging in matters sub judice before them. 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.”
38. In the case of:- “Republic – Versus - Paul Kihara Kariuki, Attorney General & 2 others Ex - Parte Law Society of Kenya [2020] eKLR” Justice Mativo (as he then was) stated as follows: -
“………there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a Court or Judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.”
39. The import of the concept is that as soon as the Court finds a matter sub judice it stays immediately the proceedings until the prior one is heard and determined. On this point, the “Supreme Court of Kenya in Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)”, stated therein 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.”
40. Therefore, based on these legal reasoning, the Honourable Court holds that the application by the Defendant/Applicant has merit and ought to be considered as prayed.
ISSUE No. b). Whether the parties are entitled to the reliefs sought
41. Under this sub - heading, the Honourable Court now proceeds to apply the established legal principles to the instant application and determine whether the Plaintiff’s suit, Kwale ELC No. E008 of 2025, is barred by “the doctrines of res judicata and sub judice”, as contended by the Defendant/Applicant.
42. It is not in dispute that the Plaintiff/Respondent herein was a party to “Mombasa ELC No. 5 of 2018 – Juma Mohamed Mwachihi – Versus - Samuel Hezron Kamunya & Others”, wherein the subject matter was the parcel of land known as Kwale/Ukunda/1009. In that suit, the present Defendant/Applicant was the Plaintiff, while the present Plaintiff/Respondent was the 2nd Defendant. The Environment and Land Court at Mombasa rendered its Judgment on 20th January 2022, conclusively determining ownership of the suit property and ordering the Plaintiff/Respondent (then 2nd Defendant) to vacate the land forthwith.
43. Subsequently, the same Plaintiff lodged an appeal against that decision in Mombasa Civil Appeal No. E238 of 2024, which remains pending before the Court of Appeal. The subject of that appeal, as evidenced by the Memorandum of Appeal annexed as “JM – 1”, is the propriety of the Mombasa ELC Judgment in respect of Kwale/Ukunda/1009. It therefore follows that the ownership, occupation, and proprietary interests in the same parcel are directly and substantially in issue before both this Court and the appellate court.
44. The Plaintiff/Respondent’s contention that this suit is premised on a subsequent sale agreement dated 10th May 2021, allegedly executed during the pendency of Mombasa ELC No. 5 of 2018, does not alter the character of the dispute. The said agreement relates to the same parcel of land, and the Plaintiff/Respondent now seeks orders of specific performance compelling the Defendant/Applicant to transfer ownership of the same property. The cause of action and reliefs sought herein therefore arise from, and are inseparably linked to, the same property rights already adjudicated upon in the prior suit.
45. The doctrine of res judicata, codified under Section 7 of the Civil Procedure Act, is designed to bar re-litigation of issues that have been heard and finally determined by a court of competent jurisdiction. The Supreme Court in the case of:- “John Florence Maritime Services Limited & another (Supra)” reaffirmed that the doctrine applies not only to matters actually determined, but also to issues that ought to have been raised for determination in the earlier proceedings. The court stated:
“The rule on res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from being vexed, haunted and hounded by issues and suits that have already been determined by a competent court.”
46. Similarly, in the case of:- “Henderson v. Henderson (Supra)”, the Court held that parties are bound to bring forward their whole case, and any issue which could and ought to have been raised in earlier proceedings is deemed to have been determined. Applying that principle here, the Plaintiff/Respondent, who claims to have purchased the suit property while the earlier proceedings were ongoing, ought to have presented that agreement before the Mombasa ELC either by way of an amended defence or counterclaim. Having failed to do so, he cannot now re-litigate the same ownership claim through a fresh suit under the guise of enforcing the sale agreement.
47. The court in the case of:- “Independent Electoral & Boundaries Commission (Supra)” distilled five conjunctive elements for the application of res judicata:
a. the matter directly and substantially in issue must be the same;
b. the former suit must have been between the same parties or parties litigating under the same title;
c. the issue must have been heard and finally determined;
d. the court that heard the matter must have been competent; and
e. the parties must be litigating under the same title;
f. All these elements are satisfied in the present case.
48. First, the subject matter in both suits is the same parcel of land—Kwale/Ukunda/1009. Second, the parties are identical, save that their designations have changed. Third, the Mombasa ELC was a court of competent jurisdiction which rendered a final judgment on the proprietary interests in the property. Fourth, the pending appeal in Civil Appeal No. E238 of 2024 does not nullify the finality of the trial court’s decision; the judgment remains binding until set aside by the appellate court. The Plaintiff’s attempt to reopen the matter before this Court therefore offends both the doctrine of res judicata and the rule of sub judice.
49. The principle of sub judice, as embodied in Section 6 of the Civil Procedure Act, prohibits parallel proceedings over the same matter in multiple courts. The Court of Appeal in the case of:- “Wainaina – Versus - Waibara (Civil Appeal 252 of 2023) [2024] KEHC 9501” held that once a dispute has been lodged in a competent court and remains pending on appeal, no other court of concurrent jurisdiction should entertain the same issue, lest the judicial process be brought into disrepute. To allow this suit to proceed while the appeal is pending would create a risk of conflicting outcomes, undermining the integrity and finality of judicial decisions.
50. Moreover, the Plaintiff/Respondent’s conduct in filing a fresh suit over the same property while an appeal is pending constitutes forum shopping and abuse of process, as defined in the case of:- “Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited & 2 others [2009] eKLR”, where the Court of Appeal held:
“A litigant who persistently and without reasonable grounds re-litigates issues already decided, or engages in proceedings meant to harass, irritate or delay, abuses the court process.”
51. This Court finds that the Plaintiff/Respondent’s attempt to revive the ownership dispute through a claim of specific performance amounts to a collateral attack on a subsisting Judgment, and thus an abuse of process. In the totality of the circumstances, this Court is satisfied that the Plaintiff’s suit is res judicata, and in the alternative, sub judice, given the pending appellate proceedings in Civil Appeal No. E238 of 2024. Allowing the suit to proceed would amount to re-opening matters conclusively determined by a court of competent jurisdiction, contrary to the public policy that – “litigation must come to an end”.
ISSUE No. c). Who will bear the Costs of the Objection?
52. It is now well established that the issue of Costs is the discretion of Courts. Costs is an award that a party is granted at the conclusion of any legal action or proceedings of any litigation. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013) provides: -
“(1) The award of costs is at the discretion of the Court.
(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”
53. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of:- “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: -
“………. the basic rule on attribution of costs is that costs follow the event…...it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”.
54. In the instant case, taking that the Defendant/Applicant has succeeded on the fundamental threshold of res judicata and sub judice, they are entitled to costs thereof.
VI. Conclusions & Disposition
55. Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court on Preponderance of Probabilities and the balance of convenience reaches at the following findings. These are: -
a. THAT the Defendant/Applicant’s Notice of Motion dated 2nd July 2025 is hereby allowed.
b. THAT the Plaintiff’s suit in Kwale ELC No. E008 of 2025 is hereby struck out in its entirety for being res judicata and sub judice.
c. THAT the Plaintiff shall bear the costs of the application and the entire suit.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ………… 12TH ………… DAY OF …......... NOVEMBER …………. 2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
M/s. Matoke for the Plaintiff/Respondent.
b) Mr. Maundu Advocate for the Defendant/Applicant.