I. Introduction
1) The Ruling of this Honourable Court is one that relates to the Notice of Motion application dated 23rd July 2025. It was filed by VERNON MARK GACII (Suing as the Administrator of the Estate of Prof. Peter Gacii) the Plaintiff/Applicant herein. The Application was brought pursuant to the provisions of Sections 1(A), 1(B) and 3A of the Civil Procedure Act, Cap. 21 and Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 3 of the Trespass Act, Cap. 294, Sections 24, 25 and 26 Land Registration Act, No. 3 of 2012, Article 40 of the Constitution of Kenya, 2010, and all other enabling laws.
2) The application was opposed by the 1st and 2nd Defendants/Respondents through filing of Grounds of Opposition dated 12th October 2025. The Honourable Court shall be dealing with the issues much more in depth at a later stage of this Ruling hereof.
II. The case by the Plaintiff/Applicant
3. The Plaintiff/Applicant sought for the following prayers: -
a) Spent.
b) That an order of temporary injunction restraining the 1st and 2nd Defendant/Respondents herein their agents, licensees or servants from developing, constructing, trespassing, dealing, entering, occupying, leasing, selling or remaining on the suit property or in any other manner whatsoever interfering with the suit property, parcel LR No. 12962, pending the hearing and determination of this Application.
c) That an order of temporary injunction restraining the 1st and 2nd Defendant/Respondents herein their agents, licensees or servants from developing, constructing, trespassing, dealing, entering, occupying, leasing, selling or remaining on the suit property or in any other manner whatsoever interfering with the suit property, parcel LR No. 12962, pending the hearing and determination of this suit.
d) That an order of eviction of the 1st and 2nd Defendants from the suit property forthwith.
e) That this Honorable court be pleased to grant a Mandatory injunction compelling the 1st and 2nd Defendant/Applicants whether by themselves, their agents and/or servants to demolish and/or remove the erected houses/structure on parcel LR No. 12962, pending the hearing determination of this suit. and
f) That the Officer Commanding station Tiwi Police Station supervises as well as provides security during the execution of Court Orders.
g) That this Honourable Court be pleased to make such further or other orders as it may deem just
4. The application was based on the grounds, testimonial facts and the averments made out under the Supporting Affidavit of VERNON MARK GACII. He averred as follows that:-
a) At all material times herein, the Applicant’s father, the Late Peter Gacii was the registered proprietor of all that piece or parcel of land known as Land Reference Number 12962 as confirmed by an Official Search Certificate dated 7th January 2021 from the Government of the Republic of Kenya signed by the Registrar of Titles.
b) The suit property was distributed to the beneficiaries in Milimani High Court Succession Cause No, 778 of 1992, after passing of the Applicant’s father, vide a Certificate of confirmation of Grant dated 21st November, 2021 and amended in November, 2024.
c) The 1st and 2nd Respondents had unlawfully and forcibly entered the suit property, LR No. 12962, took possession and occupation without the permission or consent of the Administrators and/or beneficiaries, claiming that the property belonged to them, and purported to undertake construction and/or erect houses/structures without any colour of right.
d) The Defendants/Respondents were trespassers to the suit property and had purported to undertake construction without the authority or consent of the owner.
e) The Defendants/Respondents had erected structures with intention of putting up accommodation and/or hotel business.
f) On 10th June, 2025, the Plaintiff/Applicant reported to Tiwi police station vide OB No. 06/10/06/2025 and despite several demands to stop erecting structures and/or houses on the suit property and demolish the said structures have been unsuccessful. The Defendants/Respondents continued to erect the illegal structures.
g) The suit property was subject of litigation in “Kwale ELC Petition 10 of 2021, (formerly Mombasa ELC Petition 36 of 2020)”, though on a different subject matter, and on 4th November, 2020, Justice Munyao Sila sitting in Mombasa in Mombasa ELC Petition 36 of 2020, directed that status quo over the suit property be maintained.
h) The Plaintiff/Applicant furnished the OCS Tiwi Police station with a copy of the Status quo orders given on 4th November, 2020 for their perusal and verification, but the Respondents remains on the suit property.
i) The Defendants/Respondents had entered the suit property, LR No..12962, Tiwi without the consent of the Applicant and/or of this Honorable Court;
j) The Defendants/Respondents had failed to vacate and demolish the structures and/or houses in the suit property despite demands, with intention to disentitling the Applicant and/or estate form possession and/or ownership.
k) The Defendant/Respondents had failed to vacate the suit property despite the demand and service of the status quo orders;
l) The Defendants/Respondents had refused to demolish the illegal houses and/or structures erected on the suit property, LR no, 12962 Tiwi;
m) The Defendants/Respondents were disentitling the Plaintiff/Applicant's from possession;
n) The Defendants/Respondents were wasting and destroying the land.
o) The Defendants/Respondents had dug trenches and holes while undertaking the illegal. construction;
p) The Defendants/Respondents were causing to be erected and/or erecting illegal houses and/or structures; Despite requesting the Respondents to vacate and/or leave the suit premises, the Respondents remains unwilling;
q) The Defendants/Respondents were unknown to the Plaintiff/Applicant and or the estate.
r) The Plaintiff/Applicant stood to suffer irreparable loss and damage, if the orders sought herein was not granted as it could not be adequately compensated for its loss in damages.
s) Also that if this Honourable Court did not intervene and issue the injunction, orders sought, the Defendants/Respondents would proceed to illegally take total possession and/or occupation noting that the houses and/or structures was at the tail end of construction.
t) That it was in the interest of Justice and fairness that the orders sought herein be allowed as prayed.
III. The responses by the Defendants/Respondents.
5. In opposing the application dated 23rd July 2025, the Defendants/Respondents filed two ( 2 ) Grounds of Opposition dated 12th October 2025. It raised the following grounds that:-
a) Arising out of the pleadings it is admitted and evident that the suit property is subject of litigation in Kwale ELC Petition No.10 of 2021 as such the subject matter being the suit property was “Sub judice” particularly given the fact that in the said suit Kwale ELC Petition No.10 of 2021 there was an ownership dispute.
b) It was therefore in the interest of justice and fairness that the application.
VI. Submissions
6. On 16th October 2025, in the presence of Ms Wangui Counsel for the Applicant and Mr. Mwawasaa Counsel for the 1st & 2nd Defendants/Respondents, directions were issued by this court to have the notice of motion dated 23rd July 2025 canvassed by way of written submissions.
7. Unfortunately, at the time of writing this ruling, none of the parties had complied with the said directions. It is noted that on 4th February 2026 when this matter came up for mention to confirm compliance with the direction on submissions, Ms Wangui informed court that the applicant had filed his submissions but a perusal of the Judiciary CTS Portal nor the ELC Registry revealed the contrary.
8. The Court will nevertheless proceed and render its verdict on its own merit accordingly.
VII. Analysis and Determination
9. I have carefully read and considered the pleadings herein by the parties and the relevant provisions of statute and the Constitution of Kenya, 2010.
10. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed three (3) issues for its determination. These are: -
a) Whether the Notice of Motion application dated 23rd July 2025 meets the threshold for granting of temporary Injunctive orders.
b) Whether the parties herein are entitled to the reliefs sought is merited
c) Who bears the costs of the notice of motion dated 23rd July 2025?
ISSUE No. a). Whether the Notice of Motion application dated 23rd July 2025 is merited.
11. Under this Sub – heading, the Honourable Court will examine the ingredients and the parameters for granting an interim temporary injunctive orders. Nonetheless, before delving into discussions on the merits of the application, I will first point out that when this file was placed before the Honourable court on 16th October 2025, Counsel for the Respondents Mr Mwawasaa intimated to court that he had filed a Memorandum of appearance and grounds of opposition and sought for more time to file and serve replies in form of a replying affidavit in opposing the instant application.
12. Mr. Mwawasaa further informed court that there existed a Civil suit over the same subject matter with what is before court being “ELC Petition 10 of 2021[ formerly Mombasa ELC Petition No 36 of 2020]”.
13. However, in a brief rejoinder to these assertions, M/s. Wangui Counsel not only did she admit to the existence of the said Petition but also intimated Court that the said Petition was coming up for mention before the court on 21st and 22nd of October 2025. According to the Learned Counsel, the best way out of this accusation was for the Defendants to formerly move the Court raising all these issues whatsoever. Arising from these altercation, Honourable Court directed the parties to be at liberty to move it formerly over the disputed issues.
14. Despite of the afore stated direction, none of the aggrieved parties took any action nor adhered with the Court’s direction. Indeed, its instructive to note that, save for filing of the Grounds of Opposition, the Defendants/Respondents neither filed any replies in form of Replying Affidavit to the application nor raised the issue of sub – judice. Thus, the question the Honourable Court wishes to raise therefore is this: can the issue of “the Doctrine of Sub – judice” as raised by the Defendants/Respondents be wished away? Ideally, the same would be raised by filing a formal application to have the matter struck out or a preliminary objection. This has not been the case here.
15. However, this being a Court of record, in the course of perusing the pleadings filed by both parties, I noted that the Plaintiff/Applicant has made reference to status quo orders previously made over the suit property though in a separate suit. The Plaintiff/Applicant states that the Defendants/Respondents have with blatant abuse and disregard of the said orders continued with development of the suit property and occupation of the same to the applicant’s detriment.
16. To this extent, I have perused the attached copy of the status quo orders issued on 4th November 2020 by Judge Sila Munyao in the Civil Case of “ELC Petition Case No 36 of 2020” and which have been extensively referred to by the Plaintiff/Applicant herein. For ease of reference and clarity sake, the Hon Judge issued the following orders:-
a) That Mr Oluga is given 14 days requested to file his documents and since the court has run out of dates for the year the application will be canvassed on 9th February 2021.
b) That hearing notice to issue.
c) That status quo be maintained.
17. Thus, this Court is being called upon by the Defendants/Respondents to consider the orders issued in a separate suit and which suit is infact the Petition referred to by the Respondents as giving rise to the sub - judice allegations.
18. Bearing this in mind, I am forced to discuss the doctrine in order to put into perspective whatever orders this court might make in making a decision on the application before it.
19. The doctrine of Sub- judice is derived from the provision of Section 6 of the Civil Procedure Act, Cap. 21 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.”
20. In a recent decision by the High Court, Justice Mativo discussed the concept sub judice in the case of:- “Republic – Versus - Paul Kihara Kariuki, Attorney General & 2 others Ex - Parte Law Society of Kenya [2020] eKLR” where he 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.”
21. 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 the case of:- “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.”
22. To my mind, the fact of filing the subsequent suit, namely the instant suit, whilst being alive to the existence of the previous suit which is a Constitutional Petition constitutes and/or amounts to an abuse of the due process of the court. Under normal circumstances the court would not address the issue of sub judice, but given that the Plaintiff/Applicant is placing reliance on status quo orders issued in the Petition, then it is imperative of the court to address the issue as there lays the danger of having two contradictory findings from the courts and which will obviously affect the subject matter. Indeed, the Court at all times must avoid emerging into an embarrassing situation and/or conflicting decision whatsoever. I emphasise that the Honourable Court at all costs needs to protect itself from this kind of abuse of its mandate and time.
23. In saying so, I seek refuge from the decision of the High Court of Uganda held in the case of:- “Nyanza Garage - Versus - Attorney General HCCS No. 450 of 1993”, where the Court held:
“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”
24. Further, I was guided by the holding in the case of:- “Stephen Somek Takweny & Anor – Versus - David Mbuthia Githare & 2 Others Nairobi (Milimani HCC No. 363 of 2009)” where it was held as follows:-
“……The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process, it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognize as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.”
25. Based on the above stated legal assertions, I discern that the application by the Plaintiff/Applicant seeking interim orders in order to preserve the suit property finds itself hanging and lacking any basis in all fairness. There will be no need to expend valuable judicial time in analysing the legal ingredients of granting Interim Injunctions as founded under the Provision of Order 40 Rules, 1, 2 & 3 of the Civil Procedure Rules, 2010. On the contrary, to the best interest of justice, Conscience and Equity, the much the Court may offer is to allow the status quo order to be maintained. This would mean that the situation remains as it was prior to filing of this suit whatsoever.
ISSUE No. b). Whether the parties herein are entitled to the reliefs sought is merited
26. Under this Sub heading and arising from the above decision taken by Court, ideally the court would bar itself from making any orders at the moment pending clarity from the parties on the issues arising for determination in the petition and those in the instant suit pursuant to the above discussions on the provision of Section 6 of the Civil Procedure Act, Cap. 21. However, I need to caution and remind myself that the sub - judice issue has not been properly canvassed even though both parties have referred to the petition making its existence rather obvious.
27. But, it is noted that the Plaintiff/Applicant was seeking for injunctive orders claiming interference with the suit property which the court notes is registered in the Plaintiff/Applicant’s name as per the attached copy of official search. To this end, the Defendants/Respondents do not deny being in possession of the suit property. Thus, as already stated, I reiterate that in order to preserve the subject matter pending clarification on the two suits before court, the orders of status quo to be maintained will suffice at this particular time pending the heading and final determination of the main suit.
28. In all fairness, the Parties herein are still at liberty and have room to bring to the fore all the issues pending before the Constitution Petition. Certainly, the Honourable Court will proceed to adjudicate and consider them based on facts and relevant provision of law accordingly during its final decision.
ISSUE No. c). Who bears the costs of the instant application?
29. It is trite law that costs are issues at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of the legal action or proceedings of any litigation. The Proviso of Section 27 of the Civil Procedure Act, Cap. 21 holds that costs follow an event. By an event it means the outcome or result of the legal action or proceedings thereof.
30. However, the circumstances of this case have led the court in believing that it will be in the interest of justice, equity and conscience to have each party bear its own costs.
VIII. Conclusion and Disposition
31. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court proceeds to grant the following orders and directions:
a) THAT the Notice of Motion application dated 23rd July 2025 by the Plaintiff/Applicant partially succeeds in as far as an order for the preservation of the suit property pending the hearing and determination of the main suit is concerned.
b) THAT this file together with Kwale ELC Petition No.10 of 2021 be mentioned before this court within the next 45 days for purposes of discussions and directions on which file will proceed given that one is a normal suit while the other is a Petition though they both raise ownership issues.
c) THAT status quo be maintained to the extent that continued construction or developments on the suit property are to cease with immediate effect pending the mention for directions as ordered in [b] above.
d) THAT for expediency sake, there be a Pre – Trial Conference conducted on 6th May, 2026 in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. Thereafter, a hearing shall be taken by the consensus of the parties.
e) THAT each party shall bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS
VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……13TH …. DAY OF ………..APRIL………….2026
Ruling delivered in the presence of: -
a) M/s. Asmaa Maftah, the Court Assistant.
b) M/s. Wangui Advocate for the Applicant.
c) No appearance for the Respondent.
1) The Ruling of this Honourable Court is one that relates to the Notice of Motion application dated 23rd July 2025. It was filed by VERNON MARK GACII (Suing as the Administrator of the Estate of Prof. Peter Gacii) the Plaintiff/Applicant herein. The Application was brought pursuant to the provisions of Sections 1(A), 1(B) and 3A of the Civil Procedure Act, Cap. 21 and Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 3 of the Trespass Act, Cap. 294, Sections 24, 25 and 26 Land Registration Act, No. 3 of 2012, Article 40 of the Constitution of Kenya, 2010, and all other enabling laws.
2) The application was opposed by the 1st and 2nd Defendants/Respondents through filing of Grounds of Opposition dated 12th October 2025. The Honourable Court shall be dealing with the issues much more in depth at a later stage of this Ruling hereof.
II. The case by the Plaintiff/Applicant
3. The Plaintiff/Applicant sought for the following prayers: -
a) Spent.
b) That an order of temporary injunction restraining the 1st and 2nd Defendant/Respondents herein their agents, licensees or servants from developing, constructing, trespassing, dealing, entering, occupying, leasing, selling or remaining on the suit property or in any other manner whatsoever interfering with the suit property, parcel LR No. 12962, pending the hearing and determination of this Application.
c) That an order of temporary injunction restraining the 1st and 2nd Defendant/Respondents herein their agents, licensees or servants from developing, constructing, trespassing, dealing, entering, occupying, leasing, selling or remaining on the suit property or in any other manner whatsoever interfering with the suit property, parcel LR No. 12962, pending the hearing and determination of this suit.
d) That an order of eviction of the 1st and 2nd Defendants from the suit property forthwith.
e) That this Honorable court be pleased to grant a Mandatory injunction compelling the 1st and 2nd Defendant/Applicants whether by themselves, their agents and/or servants to demolish and/or remove the erected houses/structure on parcel LR No. 12962, pending the hearing determination of this suit. and
f) That the Officer Commanding station Tiwi Police Station supervises as well as provides security during the execution of Court Orders.
g) That this Honourable Court be pleased to make such further or other orders as it may deem just
4. The application was based on the grounds, testimonial facts and the averments made out under the Supporting Affidavit of VERNON MARK GACII. He averred as follows that:-
a) At all material times herein, the Applicant’s father, the Late Peter Gacii was the registered proprietor of all that piece or parcel of land known as Land Reference Number 12962 as confirmed by an Official Search Certificate dated 7th January 2021 from the Government of the Republic of Kenya signed by the Registrar of Titles.
b) The suit property was distributed to the beneficiaries in Milimani High Court Succession Cause No, 778 of 1992, after passing of the Applicant’s father, vide a Certificate of confirmation of Grant dated 21st November, 2021 and amended in November, 2024.
c) The 1st and 2nd Respondents had unlawfully and forcibly entered the suit property, LR No. 12962, took possession and occupation without the permission or consent of the Administrators and/or beneficiaries, claiming that the property belonged to them, and purported to undertake construction and/or erect houses/structures without any colour of right.
d) The Defendants/Respondents were trespassers to the suit property and had purported to undertake construction without the authority or consent of the owner.
e) The Defendants/Respondents had erected structures with intention of putting up accommodation and/or hotel business.
f) On 10th June, 2025, the Plaintiff/Applicant reported to Tiwi police station vide OB No. 06/10/06/2025 and despite several demands to stop erecting structures and/or houses on the suit property and demolish the said structures have been unsuccessful. The Defendants/Respondents continued to erect the illegal structures.
g) The suit property was subject of litigation in “Kwale ELC Petition 10 of 2021, (formerly Mombasa ELC Petition 36 of 2020)”, though on a different subject matter, and on 4th November, 2020, Justice Munyao Sila sitting in Mombasa in Mombasa ELC Petition 36 of 2020, directed that status quo over the suit property be maintained.
h) The Plaintiff/Applicant furnished the OCS Tiwi Police station with a copy of the Status quo orders given on 4th November, 2020 for their perusal and verification, but the Respondents remains on the suit property.
i) The Defendants/Respondents had entered the suit property, LR No..12962, Tiwi without the consent of the Applicant and/or of this Honorable Court;
j) The Defendants/Respondents had failed to vacate and demolish the structures and/or houses in the suit property despite demands, with intention to disentitling the Applicant and/or estate form possession and/or ownership.
k) The Defendant/Respondents had failed to vacate the suit property despite the demand and service of the status quo orders;
l) The Defendants/Respondents had refused to demolish the illegal houses and/or structures erected on the suit property, LR no, 12962 Tiwi;
m) The Defendants/Respondents were disentitling the Plaintiff/Applicant's from possession;
n) The Defendants/Respondents were wasting and destroying the land.
o) The Defendants/Respondents had dug trenches and holes while undertaking the illegal. construction;
p) The Defendants/Respondents were causing to be erected and/or erecting illegal houses and/or structures; Despite requesting the Respondents to vacate and/or leave the suit premises, the Respondents remains unwilling;
q) The Defendants/Respondents were unknown to the Plaintiff/Applicant and or the estate.
r) The Plaintiff/Applicant stood to suffer irreparable loss and damage, if the orders sought herein was not granted as it could not be adequately compensated for its loss in damages.
s) Also that if this Honourable Court did not intervene and issue the injunction, orders sought, the Defendants/Respondents would proceed to illegally take total possession and/or occupation noting that the houses and/or structures was at the tail end of construction.
t) That it was in the interest of Justice and fairness that the orders sought herein be allowed as prayed.
III. The responses by the Defendants/Respondents.
5. In opposing the application dated 23rd July 2025, the Defendants/Respondents filed two ( 2 ) Grounds of Opposition dated 12th October 2025. It raised the following grounds that:-
a) Arising out of the pleadings it is admitted and evident that the suit property is subject of litigation in Kwale ELC Petition No.10 of 2021 as such the subject matter being the suit property was “Sub judice” particularly given the fact that in the said suit Kwale ELC Petition No.10 of 2021 there was an ownership dispute.
b) It was therefore in the interest of justice and fairness that the application.
VI. Submissions
6. On 16th October 2025, in the presence of Ms Wangui Counsel for the Applicant and Mr. Mwawasaa Counsel for the 1st & 2nd Defendants/Respondents, directions were issued by this court to have the notice of motion dated 23rd July 2025 canvassed by way of written submissions.
7. Unfortunately, at the time of writing this ruling, none of the parties had complied with the said directions. It is noted that on 4th February 2026 when this matter came up for mention to confirm compliance with the direction on submissions, Ms Wangui informed court that the applicant had filed his submissions but a perusal of the Judiciary CTS Portal nor the ELC Registry revealed the contrary.
8. The Court will nevertheless proceed and render its verdict on its own merit accordingly.
VII. Analysis and Determination
9. I have carefully read and considered the pleadings herein by the parties and the relevant provisions of statute and the Constitution of Kenya, 2010.
10. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed three (3) issues for its determination. These are: -
a) Whether the Notice of Motion application dated 23rd July 2025 meets the threshold for granting of temporary Injunctive orders.
b) Whether the parties herein are entitled to the reliefs sought is merited
c) Who bears the costs of the notice of motion dated 23rd July 2025?
ISSUE No. a). Whether the Notice of Motion application dated 23rd July 2025 is merited.
11. Under this Sub – heading, the Honourable Court will examine the ingredients and the parameters for granting an interim temporary injunctive orders. Nonetheless, before delving into discussions on the merits of the application, I will first point out that when this file was placed before the Honourable court on 16th October 2025, Counsel for the Respondents Mr Mwawasaa intimated to court that he had filed a Memorandum of appearance and grounds of opposition and sought for more time to file and serve replies in form of a replying affidavit in opposing the instant application.
12. Mr. Mwawasaa further informed court that there existed a Civil suit over the same subject matter with what is before court being “ELC Petition 10 of 2021[ formerly Mombasa ELC Petition No 36 of 2020]”.
13. However, in a brief rejoinder to these assertions, M/s. Wangui Counsel not only did she admit to the existence of the said Petition but also intimated Court that the said Petition was coming up for mention before the court on 21st and 22nd of October 2025. According to the Learned Counsel, the best way out of this accusation was for the Defendants to formerly move the Court raising all these issues whatsoever. Arising from these altercation, Honourable Court directed the parties to be at liberty to move it formerly over the disputed issues.
14. Despite of the afore stated direction, none of the aggrieved parties took any action nor adhered with the Court’s direction. Indeed, its instructive to note that, save for filing of the Grounds of Opposition, the Defendants/Respondents neither filed any replies in form of Replying Affidavit to the application nor raised the issue of sub – judice. Thus, the question the Honourable Court wishes to raise therefore is this: can the issue of “the Doctrine of Sub – judice” as raised by the Defendants/Respondents be wished away? Ideally, the same would be raised by filing a formal application to have the matter struck out or a preliminary objection. This has not been the case here.
15. However, this being a Court of record, in the course of perusing the pleadings filed by both parties, I noted that the Plaintiff/Applicant has made reference to status quo orders previously made over the suit property though in a separate suit. The Plaintiff/Applicant states that the Defendants/Respondents have with blatant abuse and disregard of the said orders continued with development of the suit property and occupation of the same to the applicant’s detriment.
16. To this extent, I have perused the attached copy of the status quo orders issued on 4th November 2020 by Judge Sila Munyao in the Civil Case of “ELC Petition Case No 36 of 2020” and which have been extensively referred to by the Plaintiff/Applicant herein. For ease of reference and clarity sake, the Hon Judge issued the following orders:-
a) That Mr Oluga is given 14 days requested to file his documents and since the court has run out of dates for the year the application will be canvassed on 9th February 2021.
b) That hearing notice to issue.
c) That status quo be maintained.
17. Thus, this Court is being called upon by the Defendants/Respondents to consider the orders issued in a separate suit and which suit is infact the Petition referred to by the Respondents as giving rise to the sub - judice allegations.
18. Bearing this in mind, I am forced to discuss the doctrine in order to put into perspective whatever orders this court might make in making a decision on the application before it.
19. The doctrine of Sub- judice is derived from the provision of Section 6 of the Civil Procedure Act, Cap. 21 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.”
20. In a recent decision by the High Court, Justice Mativo discussed the concept sub judice in the case of:- “Republic – Versus - Paul Kihara Kariuki, Attorney General & 2 others Ex - Parte Law Society of Kenya [2020] eKLR” where he 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.”
21. 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 the case of:- “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.”
22. To my mind, the fact of filing the subsequent suit, namely the instant suit, whilst being alive to the existence of the previous suit which is a Constitutional Petition constitutes and/or amounts to an abuse of the due process of the court. Under normal circumstances the court would not address the issue of sub judice, but given that the Plaintiff/Applicant is placing reliance on status quo orders issued in the Petition, then it is imperative of the court to address the issue as there lays the danger of having two contradictory findings from the courts and which will obviously affect the subject matter. Indeed, the Court at all times must avoid emerging into an embarrassing situation and/or conflicting decision whatsoever. I emphasise that the Honourable Court at all costs needs to protect itself from this kind of abuse of its mandate and time.
23. In saying so, I seek refuge from the decision of the High Court of Uganda held in the case of:- “Nyanza Garage - Versus - Attorney General HCCS No. 450 of 1993”, where the Court held:
“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”
24. Further, I was guided by the holding in the case of:- “Stephen Somek Takweny & Anor – Versus - David Mbuthia Githare & 2 Others Nairobi (Milimani HCC No. 363 of 2009)” where it was held as follows:-
“……The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process, it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognize as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.”
25. Based on the above stated legal assertions, I discern that the application by the Plaintiff/Applicant seeking interim orders in order to preserve the suit property finds itself hanging and lacking any basis in all fairness. There will be no need to expend valuable judicial time in analysing the legal ingredients of granting Interim Injunctions as founded under the Provision of Order 40 Rules, 1, 2 & 3 of the Civil Procedure Rules, 2010. On the contrary, to the best interest of justice, Conscience and Equity, the much the Court may offer is to allow the status quo order to be maintained. This would mean that the situation remains as it was prior to filing of this suit whatsoever.
ISSUE No. b). Whether the parties herein are entitled to the reliefs sought is merited
26. Under this Sub heading and arising from the above decision taken by Court, ideally the court would bar itself from making any orders at the moment pending clarity from the parties on the issues arising for determination in the petition and those in the instant suit pursuant to the above discussions on the provision of Section 6 of the Civil Procedure Act, Cap. 21. However, I need to caution and remind myself that the sub - judice issue has not been properly canvassed even though both parties have referred to the petition making its existence rather obvious.
27. But, it is noted that the Plaintiff/Applicant was seeking for injunctive orders claiming interference with the suit property which the court notes is registered in the Plaintiff/Applicant’s name as per the attached copy of official search. To this end, the Defendants/Respondents do not deny being in possession of the suit property. Thus, as already stated, I reiterate that in order to preserve the subject matter pending clarification on the two suits before court, the orders of status quo to be maintained will suffice at this particular time pending the heading and final determination of the main suit.
28. In all fairness, the Parties herein are still at liberty and have room to bring to the fore all the issues pending before the Constitution Petition. Certainly, the Honourable Court will proceed to adjudicate and consider them based on facts and relevant provision of law accordingly during its final decision.
ISSUE No. c). Who bears the costs of the instant application?
29. It is trite law that costs are issues at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of the legal action or proceedings of any litigation. The Proviso of Section 27 of the Civil Procedure Act, Cap. 21 holds that costs follow an event. By an event it means the outcome or result of the legal action or proceedings thereof.
30. However, the circumstances of this case have led the court in believing that it will be in the interest of justice, equity and conscience to have each party bear its own costs.
VIII. Conclusion and Disposition
31. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court proceeds to grant the following orders and directions:
a) THAT the Notice of Motion application dated 23rd July 2025 by the Plaintiff/Applicant partially succeeds in as far as an order for the preservation of the suit property pending the hearing and determination of the main suit is concerned.
b) THAT this file together with Kwale ELC Petition No.10 of 2021 be mentioned before this court within the next 45 days for purposes of discussions and directions on which file will proceed given that one is a normal suit while the other is a Petition though they both raise ownership issues.
c) THAT status quo be maintained to the extent that continued construction or developments on the suit property are to cease with immediate effect pending the mention for directions as ordered in [b] above.
d) THAT for expediency sake, there be a Pre – Trial Conference conducted on 6th May, 2026 in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. Thereafter, a hearing shall be taken by the consensus of the parties.
e) THAT each party shall bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS
VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……13TH …. DAY OF ………..APRIL………….2026
Ruling delivered in the presence of: -
a) M/s. Asmaa Maftah, the Court Assistant.
b) M/s. Wangui Advocate for the Applicant.
c) No appearance for the Respondent.