Background and Introduction
1. This Ruling determines the 2nd defendant’s application dated 6th June 2024, brought specifically under Sections 1A, 1B, 3, 3A and 6 of the Civil Procedure Act, Order 2 Rules 15(b) and (d) and Order 51 Rule 1 of the Civil Procedure Rules as well as Article 159(2) of the Constitution.
2. The applicant (hereinafter the Society) seeks to strike out the suit herein in limine on grounds that it offends the sub judice rule and is an abuse of the court process. In particular, the Society contends that the issues raised in the present suit are directly and substantially in issue in HCCC No. 1068 of 1998 Thika Coffee Mills V Coffee Board of Kenya.
3. The Society avers that HCCC No. 1068 of 1998 and HCCC No. 109 of 2001 were instituted by the plaintiff concerning the same subject matter while the former and earlier suit was still pending before the High Court. It is asserted that the plaintiff and the Society were parties in HCCC 1068 of 1998, while HCCC 109 of 2001 was also instituted by the same plaintiff against other parties but over the same claims. The Society argues that by virtue of HCCC 1068 of 1998, the present suit is sub judice under Section 6 of the Civil Procedure Act and ought not to proceed.
4. The 2nd defendant (hereinafter Coffee Board) supports the application, and raises similar issues to those raised by the Society. In addition, it asserts that Thika Coffee Mills seeks to recover USD 5,839,073.56 from the defendants in the present suit, alleging breach of contract and inducement to breach agreements. However, he notes that Thika Coffee Mills is also pursuing USD 938,530.12 in HCCC No. 1068 of 1998 on similar grounds, yet both suits involve the handling of coffee sale proceeds between 1997 and 2002. Coffee Board warns of a risk of conflicting decisions and judicial inefficiency. It sees the double suits as an attempt at double compensation and unjust enrichment. It therefore urges the court to strike out the suit.
5. Thika Coffee Mills opposed the application and differentiated the two suits. It states that the current suit was instituted seeking a claim of USD 839,093.56 from the Society for failing to deliver coffee to the plaintiff and instead diverting it to a third party.
6. High Court Civil Case no 1068 of 1998 on the other hand involves Thika Coffee Mills against Agricultural Food Authority (formerly Coffee Board of Kenya), the Registrar of Co-operatives, the Cabinet Secretary for Agriculture, Livestock and Fisheries, and the Attorney General as defendants. The Society is not a party. In that case, it seeks payment from the Agricultural Food Authority for failing to pay for delivered coffee.
7. In summary, Thika Coffee Mills argues that the parties, the subject matter and the issues in both cases are distinct. It questions the delay in filing the present application, by over 23 years. In any case, while vehemently denying the relevance of the sub judice rule, Thika Coffee Mills states that even if the same was established, the Court would only stay the suit, not strike it out.
Analysis and Determination
8. I have considered the pleadings, the submissions and authorities on record. The core issue for determination is whether the present suit should be struck out for being subjudice and an abuse of court.
9. Section 6 of the Civil Procedure Act codifies the doctrine of sub judice. The principle is mandatory and requires that where a matter is found to be sub judice, the court must not proceed with the later-filed suit. The purpose of this rule, as clearly articulated by the Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 Others (Advisory Opinion No. 1 of 2017), is to prevent a multiplicity of suits which would embarrass the administration of justice. The Supreme Court had this to say:
“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”.
10. These requirements have been echoed in numerous decisions of the High Court. For instance, in Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR the court 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.”
11. In this case, the Court (Mativo J). observed that the test for sub judice is whether, assuming the previously instituted suit is determined, that outcome would resolve or render res judicata the issues in the subsequent suit. If the answer is in the affirmative, then the later suit is sub judice. It has equally been held that it is not the form in which the suit is framed that determines whether it is sub-judice, rather it is the substance of the suit.
12. In light of the foregoing, for the doctrine of res sub judice to stand in the instant case, the four principles must be present. That is, there must exist two or more suits filed consecutively, the matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits must be the same and they must be litigating under the same title and the suits must be pending in the same or any other court having jurisdiction in Kenya.
13. It is not disputed that in both matters, the Thika Coffee Mills is the plaintiff. The present suit is against the defendants and seeks USD 839,093.56 based on an alleged breach of contract by the Society for failing to deliver coffee as agreed. In HCCC No. 1068 of 1998 the parties are different as is the claim. In this suit, Thika Coffee Mills has sued the Agricultural Food Authority, the Registrar of Co-operatives, the Cabinet Secretary for Agriculture, Livestock and Fisheries, and the Attorney General for a claim resting on breached administrative processes of licensing leading to losses and damage.
14. The further re-amended plaint dated 16th December 2019 seeks various declarations, including a finding that the Agricultural Food Authority breached contracts between the plaintiff and various coffee societies, engaged in unfair trade practices, and acted in a manner prejudicial to the plaintiff’s interests. Thika Coffee Mills in HCCC No. 1068 of 1998 seeks USD 6,591,785.73 and special damages amounting to Kshs 216,000,000.00/=.
15. In light of the foregoing, the Court notes that the two suits are materially distinct in terms of both the parties involved and the issues for determination. While it is true that the claim by Thika Coffee Mills in the earlier suit includes losses that may be attributable to the Society, this, in itself, is insufficient to invoke the doctrine of sub judice. The two suits present distinct legal issues and involve different parties.
16. For the doctrine of sub judice to apply, it must be shown that both suits involve the same matter in issue, between the same parties or parties litigating under the same title, and that the matters are pending before courts of competent jurisdiction. More importantly, from my review of the pleadings, a determination of the issues in HCCC No. 1068 of 1998 would not determine the issues raised in the present suit. That being the case, the Court is not satisfied that the present suit contravenes the provisions of Section 6 of the Civil Procedure Act.
Disposition
17. Accordingly, the application dated 6th June 2024 is devoid of merit and is dismissed with costs to the Plaintiff.
DATED, SIGNED AND DELIVERED MOMBASA
THIS 16TH DAY OF APRIL 2025
F. MUGAMBI
JUDGE