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ELCStruck OutNot stated in judgment (plaint dated 16th September 2010, filed 24/9/2010)· [2013] KEELC 147 (KLR)

Peter Ngugi Kabiri v Esther Wangari Githinji & another [2013] KEELC 147 (KLR)

High Court of Kenya
11 October 2013
3,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Nyeri struck out a land claim because the plaintiff, instead of reviving an earlier dismissed case, simply filed a fresh suit over the same family land.

What this practically means

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Executive summary

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The plaintiff sued the two widows of his late brother Githinji Kabiri, claiming they held the subdivided parcels LR Maragua/Ridge/559 and 560 as trustees for him as to a one-third share, pleading customary trust and an overriding interest under section 30 of the repealed Registered Land Act, and sought a declaration, subdivision and transfer of 5 acres, plus an injunction. The defendants applied to strike out the plaint as frivolous, scandalous, oppressive, time-barred and res judicata. The court found the plaint did raise triable issues - Kikuyu customary trust, adverse possession and overriding interest - given the plaintiff's long occupation of five acres, and held it was neither scandalous nor frivolous nor oppressive. It also found the suit was not res judicata because the prior originating summons (Nairobi HCCC No.2061 of 1995 (O.S)) had been dismissed for want of prosecution and thus lacked the finality res judicata requires. However, the court held that the plaintiff's conduct - abandoning that originating summons, ignoring court orders including payment of thrown-out costs, and filing a fresh suit instead of seeking review or reinstatement - amounted to an abuse of the process of the court. The application dated 10/8/2011 was allowed, the plaint struck out, and costs of the application and suit awarded to the defendants against the plaintiff. Judgment delivered at Nyeri on 11th October 2013 by A. Ombwayo J.

Key legal issues

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01

Whether the plaint raises triable issues

Holding

Yes - customary trust, overriding interest under s.30 RLA and adverse possession raise triable issues.

Reasoning

Assuming the plaint's allegations to be true, the plaintiff's occupation of five acres for a long period and the defendants' registration as proprietors raise questions of customary trust, adverse possession and overriding interest under section 30 of the repealed Registered Land Act, which can only be resolved at a full trial.

p. 3
02

Whether the suit is res judicata

Holding

No - the previous originating summons was dismissed for want of prosecution, so there was no finality.

Reasoning

Although the issues, parties, titles and jurisdiction concur, the applicant failed to establish finality of the previous decision because HCCC No.2061 of 1995 (O.S) was dismissed for non-attendance and want of prosecution, not on the merits.

p. 5
03

Whether the suit is an abuse of the process of the court

Holding

Yes - filing a fresh suit instead of seeking review or reinstatement of the dismissed originating summons amounted to abuse.

Reasoning

The plaintiff abandoned the originating summons, ignored court orders including payment of Kshs.2,500 thrown-out costs, did not appear at the hearing, and instead of applying to set aside or review the dismissal filed a fresh suit raising the same issues. This serial, speculative litigation constitutes abuse of process.

p. 5

Legal principles established

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  • Res judicata requires finality of the previous decision; a suit dismissed for want of prosecution is not a final determination.
  • Striking out jurisdiction must be exercised with extreme caution and only in obvious cases.
  • A suit that is an abuse of the process may be struck out even where it raises a triable issue.

Court orders

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  1. 1.The plaint dated 16/9/2010 and filed on 24/9/2010 struck out for being an abuse of the process of the court
  2. 2.Costs of the application and the suit to be borne by the plaintiff

Authorities

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Legislation

  • Registered Land Act Cap 300 (repealed)section 30(g) and (h)
  • Law of Succession Act Cap 160section 30
  • Civil Procedure Act Cap 21section 7
  • Limitation of Actions Act Cap 22sections 7, 20(a) and (b)
  • Civil Procedure RulesOrder VI rule 13(1)

Cases cited (5)

  • Somon Kitundu & 2 others v Part Towers
    (2006) eKLR
  • Henderson v Henderson
    (1843–60) All E.R. 378 at 381
  • D.T Dobie & Company (k) Ltd v Muchera
  • Young v Hillary
    1895 P 87/90
  • Ng'okonyo & 2 others v K.P.T.C
    1992 KLR P.567
Jurisdiction invoked
Original civil jurisdiction of the High Court over a land claim (pleadings-based ruling under the Civil Procedure Act and Order VI rule 13(1))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Ngugi Kabiri v Esther Wangari Githinji & another [2013] KEELC 147 (KLR)", Case Analysis (2013). Not stated in judgment (plaint dated 16th September 2010, filed 24/9/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/147/eng@2013-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.