1.This ruling is in respect of the appellant/applicant’s Notice of Motion application dated March 22, 2022 and filed herein on even date (the application) and the 1st and 2nd respondents’ Notice of Preliminary Objection (the preliminary objection) dated April 20, 2022 and filed in court on April 21, 2022.
2.The appellant is represented by Omonde Kisera and Company Advocates. The 1st and 2nd respondents are represented by Akello Karuga & Company Advocates while the 3rd respondent is represented by Odhiambo Oronga and Company Advocates.
3.The 4th and 5th respondents have not entered appearance herein.
4.The appellant filed the application under Article 40, 48, 50 and 159 (2) of the Constitution of Kenya 2010, Section 2 of the Law of Succession Act, Chapter 160 Laws of Kenya, Sections 1, 1A, 3, 3A, 63 (e) and 66 of the Civil Procedure Act, Chapter 21 Laws of Kenya 2010, Order 42 Rules 6(1), (2) and (5) of the Civil Procedure Rules, 2010, and Rule 3(1) and (2) of the High Court (Practice and Procedure) Rules seeking the orders infra:a.Spentb.Spentc.There be an interim stay of execution of the order of the subordinate court dated March 3, 2022 pending hearing and determination of the applicant’s appeal herein.d.Costs of this application be provided for.
5.The 1st and 2nd respondents opposed the application by way of a replying affidavit sworn on April 20, 2022 by one Prof John E Oluoch Ating’a, a holder of power of attorney registered at the Land Titles Registry in Nairobi as no. P/A 66017/1. The respondents deposed, inter alia, that the suit property, Kamagambo/Kabuoro/2971, belongs to the estate of Dr Polycarp Erick Wambi (deceased), who died testate and whose estate is administered by the 1st respondent as executrix thereof. That the appellant fraudulently transferred the suit property to herself. That the same is the subject of Migori High Court Succession Cause No 27 of 2018.
6.Together with the Replying Affidavit, the 1st and 2nd respondents filed the Notice of Preliminary Objection hereinabove mentioned. The gist of the preliminary objection is that the instant application is sub-judice and amounts to gross abuse of the court process by the appellant/applicant herein.
7.On March 22, 2022, the court ordered and directed that the Application be heard by way of written submissions in the spirit of Article 159 (2) (b) of the Constitution of Kenya, 2010; see also Kakuta Maimai Hamisi –vs- Peris Pesi Tobiko & 2 others (2013) eKLR. The preliminary objection was also heard by way of written submissions.
8.Accordingly, the appellant, through counsel, filed submissions dated November 23, 2022 on even date, in support of the application and against the Preliminary Objection. Counsel submitted that the appeal filed herein is arguable and raises triable issues as the impugned order is against the law since it is only in a succession cause where the rights of contending beneficiaries to inherit an estate can be determined.
9.Further, counsel submitted that the High Court at Migori in Succession Cause No 27 of 2018 has since granted orders of preservation of the estate and accorded the appellant right to remain on the suit land during the pendency of the said suit. That the orders so granted, would operate as stay orders. Counsel also urged the court to stay any further proceedings herein awaiting the determination of the succession cause at Migori High Court.
10.On the part of the 1st and 2nd respondents, their counsel filed submissions dated May 9, 2022 on May 10, 2022. Counsel submitted, inter alia, that the instant application offends the sub judice rule and is an abuse of the court process as the appellant has a pending application before the High Court in Migori Succession Cause No 27 of 2018. Counsel relied on various authorities including the case of Republic –vs- Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya (2020) eKLR, in support of the submissions.
11.Initially, the matter had been filed at the Environment and Land Court in Migori. However, the same was transferred to this court on November 23, 2022 when Kullow J recused himself on the basis that he is known to one of the parties herein.
12.I have duly considered the application, the response thereto, the Preliminary Objection and the parties’ respective submissions. The preliminary objection takes priority over the instant application. So, is the Preliminary Objection sustainable? What then is the fate of the instant application?
13.It must be noted that the Preliminary Objection is on a point of law and may dispose of the suit; see Mukisa Biscuits case (infra).
14.The Preliminary Objection is grounded on Section 6 of the Civil Procedure Act, Chapter 21 Laws of Kenya.
15.In the locus classicus case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 the Court of Appeal pronounced itself on what constitutes a preliminary objection as follows:
17.Essentially, the doctrine of sub-judice prevents a court from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties, pending before same or another court with jurisdiction to determine it.
19.The rationale behind sub-judice rule is to prevent a situation of having conflicting orders emanating from two or more different courts over the same subject matter. That is the mischief Section 6 of the Civil Procedure Act (supra) is supposed to cure by providing for a stay of suit or proceedings.
22.In view of the foregoing, it is evident that for the doctrine of sub judice to apply the following principles ought to be present:-a.There must exist two or more suits filed consecutivelyb.The matter in issue in the suits or proceedings must be directly and substantially the samec.The parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title; andd.The suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
23.The above is the obtaining situation herein. Therefore, it is my considered view that the instant preliminary objection is merited. The same is hereby upheld.
24.To that end, the instant application is also untenable as I subscribe to Kakuta Maimai case (supra).
25.Notably, the appellant informed this court that the High Court at Migori in Succession Cause No. 27 of 2018 has since granted orders of preservation of the estate of Dr. Polycarp Erick Wambi (deceased) and accorded the appellant right to remain on the suit property during the pendency of the said suit. That the orders so granted, would operate as stay orders. Counsel also urged the court to stay any further proceedings herein awaiting the determination of the succession cause at Migori High Court.
26.Therefore, this suit is stayed pending the outcome of Migori High Court Succession Cause No 27 of 2018.
27.The costs of this application in entirety to be borne by the appellant/applicant.
28.It is so ordered.