WHETHER THE MATTER IS SUB JUDICE

The gravamen of the Grounds of Opposition is the Respondent’s allegations that the Applicant’s
Claim is founded on inheritance and as such should have been filed in a Succession Cause. The
Respondent further claims that there is pending before the succession Court a determination as to
the Applicant’s Claim under succession and therefore alleged that it is in the interest of justice
that the two courts do not issue contradicting determinations.
The Respondent further claims that it will be sub judice to entertain the Applicant’s suit and in
particular the instant Application and further faults the Applicant of material non-disclosure and
therefore not entitled to prayers sought.

As regards the doctrine of sub-judice, we rely on the decision in KINATWA CO-OPERATIVE

SAVINGS & CREDIT SOCIETY LIMITED V KINATWA PRESTIGE LTD [2021] EKLR
where the Court reiterated the provisions of section 6 of the Civil Procedure Act which provides
that:-
“No Court shall proceed with the trial of any suit or proceedings 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 other Court having jurisdiction in Kenya to grant the relief claimed’’
i. Whether the matters in issue is also directly and substantially in issue in a
previously instituted suit or proceeding
The Applicant submits that the issues and orders sought in the current application and suit differ
substantially from the issues and orders sought in the Succession suit. Whereas in the instant suit
the Applicant questions the legality and the procedure that the Respondent used to register the
title Dagoretti/Riruta/52 in his names and those of his co-administrator, the subsequent
succession suit is entirely hinged on a dispute between the personal representatives of the
deceased and the survivors, beneficiaries and dependants, packaged as probate issues.
We rely on the case of MARGARET WACHU KARURI Vs JOHN WAWERU RIBIRO
(2021) e K.L.R, where the Court held as follows;
“For the Court to determine whether the issues herein were directly and substantially in
issue with the other suit, it is this court’s considered view that it will have to ascertain
facts and probe evidence by ascertaining whether the issues raised in the instant suit are
the same as the ones in the Appeal aforesaid and further interrogate the prayers sought
whether they are the same and relate to the same issues...’’
The facts pertaining to the issues before this Court is the pleas by the Applicant that the
Respondent has acted in an illegal and fraudulent manner as particularized in the face of the
Plaint and the Applicant consequentially prays for Orders cancelling the registration in respect of
Dagoretti/Riruta/52 in the names of the Respondent and directing the same to be registered in the
names of the Applicant, and including the interim reliefs sought in the Application filed
herewith.

Whereas it may be true that the issues in both suits touch on the same subject, it is however clear
that no matter how one looks at the disputes, the resolution of either of them depend on separate
and very distinct questions of law, separate production of evidentiary material including the
questions regarding procedure to arrive at a conclusive determination on the issues involved.

Even if this Court was to find that there is no illegality with the registration process calling for
the cancellation of the registration, the issue as to the rights of the Applicant in a separate distinct
suit as a beneficiary of the estate of the deceased would still remain at large pending the
determination of the other suit, assuming this suit would be determined earlier. On the other hand
if that other suit were to be determined in whatever manner before these proceedings, the interest
of the Applicant in disputing the illegal registration and transfer remain unfettered, much
opposed to the allegation of the Respondent that there is risk of contradicting determinations.

ii. Whether the proceedings are between the same parties litigating under the same
title
It is clear that for a party to maintain a plea of sub judice, they must present evidence to show
that the suit relates to the same parties or parties litigating under the same title.

The Applicant submits that the Respondent at Paragraph 5 of his Replying Affidavit sworn on 5 th
December 2023 claiming that the Applicant is a friend of the family by virtue of her friendship
with the deceased, Peter Gakumoh Ng’ang’a (and far as the locus is concerned, this can be
deciphered to mean that she is a stranger to the court), is an attempt by the Respondent to block
the Applicant’s venue of enforcing her rights.

It beats logic for the Respondent to claim that the Applicant lacks locus in the probate Court
while at the same time raising the issue regarding sub judice. If at all the Applicant does not have
the standing at the probate court then how possible is that her presence in the instant suit
amounts to sub judice if indeed the claim herein is under a different title?
The claims at the Succession court are claims by a beneficiary of a deceased’s estate under
succession entitlement. The Claims before this Court are claims regarding illegal and fraudulent
registration of the suit property under an instrument of title that is challenged and the registered
proprietor must go beyond the instrument to prove the legality of how the registration was legal,
formal and free from all interests which would not be noted in the register.
 iii. Whether the courts involved have the jurisdiction to grant the reliefs sought
As was held in the case of In Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR,
the Law of Succession Act, and the Rules made thereunder, are designed in such a way that they
confer jurisdiction to the probate court with respect to determining the assets of the deceased, the
survivors of the deceased and the persons with beneficial interest, and finally distribution of the
assets amongst the survivors and the persons beneficially interested in the estate of the deceased.
The Applicant has not asked this court to do any of those functions.
However, the jurisdiction of this court to hear and determine disputes relating to the
environment, use and occupation of and title to land is provided for under Article 162(2) (b) of
the Constitution of Kenya, 2010. Further, Section 13 of the Environment and Land Court
Act also provides that;

“The Court shall have original and appellate jurisdiction to hear and determine all
disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions
of this Act or any other law applicable in Kenya relating to environment and land. (2) In
exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall
have power to hear and determine disputes— (a) relating to environmental planning
and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents,
valuations, mining, minerals and other natural resources; (b) relating to compulsory
acquisition of land; (c) relating to land administration and management; (d) relating to
public, private and community land and contracts, choses in action or other instruments
granting any enforceable interests in land; and (e) any other dispute relating to
environment and land”.

The question therefore becomes; what happens when disputes relating to use, occupation and
title to land arise in respect of the property of a deceased person? In RE ESTATE OF MBAI
WAINAINA (DECEASED) [2015] EKLR, the Court opined that ‘’the mandate of the probate
court under the Law of Succession Act is limited. It does not extend to determining issues of
ownership of property and declaration of trusts. It is not a matter of the probate court being
incompetent to deal with such issues but rather the provisions of the Law of Succession Act
and the relevant subsidiary legislation do not provide a convenient mechanism for
determination of such issues. A PARTY WHO WISHES TO HAVE SUCH MATTERS
RESOLVED OUGHT TO FILE A SUBSTANTIVE SUIT TO BE DETERMINED BY THE
ENVIRONMENT AND LAND COURT’’.

And such is the reason why the Applicant has this substantive suit alive in this Court despite the
pendency of the Succession matter.

It is abundantly clear that the main point of contention is the ownership of the suit property.
According to the Applicant, the succession court is already dealing with the issue of the
distribution of the Estate. The Applicant is seeking to impeach the title held by the Respondent.

Be that as it may, the Respondent was obligated to at least exhibit copy of pleadings filed in the
succession court to enable this court interrogate whether the issues before this court are similar to
those obtaining in the succession court. In the absence of the pleadings the only presumption this
court can safely make is that, the Grounds of opposition giving rise is an abuse of the Court
process and ought to be dismissed with costs

The Court in THIKA MIN HYDRO CO. LTD VS. JOSPHAT KARU NDWIGA (2013)
EKLR; the Court opined 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 and looking at the pleading in
both cases.”

The Respondent therefore is convinced and submits that this Honorable Court can exercise its
independent and distinct jurisdiction and the Solomonic wisdom in issuing the Orders as sought
in the Application as the same would not be contradictory to any anticipated orders from another
Court exercising a distinct jurisdiction, while both courts attempt to adjudicate on the issues
before them. For what it is worth, the Respondent’s apprehension is unfounded.

Lastly, the suit land, as long as it remains subject of an unresolved dispute before this court
cannot form part of the estate of the deceased that might be available for distribution.