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ELCPartially AllowedNot stated in the judgment text provided· [2014] KEELC 141 (KLR)

James Njuguna Chui v John Njogu Kimani [2014] KEELC 141 (KLR)

Environment and Land Court
17 September 2014
PNP. Nyamweya
2,488 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a land suit as res judicata because the same dispute had already been decided by a tribunal whose award was adopted as a court judgment.

What this practically means

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Executive summary

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The Defendant brought a Notice of Motion dated 25th April 2013 seeking to strike out the Plaintiff's Plaint dated 1st October 2012 on grounds that it was vexatious, an abuse of process, and res judicata, the same issues and parties having litigated before the Kikuyu Land Disputes Tribunal (LND/16/20/26/2003) and the Provincial Appeals Committee Tribunal (Appeal No. 6 of 2004), with the awards read and adopted as judgments of the magistrates' court. The Plaintiff opposed, arguing that the supporting affidavit sworn by the Defendant's advocate, Patricia Khisa, offended Order 19; that res judicata should be determined at trial; and that the tribunals lacked jurisdiction because the disputed land was residential land within Kikuyu municipality, outside the repealed Land Disputes Tribunal Act, and that tribunal decisions were not decisions of a court for purposes of section 7 of the Civil Procedure Act. The court held that the advocate's affidavit was properly on record, the rule not precluding advocates from swearing affidavits where sources are shown. On res judicata, the court found the Plaintiff estopped from challenging the tribunals' jurisdiction having himself instituted the proceedings, and that the Kikuyu Principal Magistrate's Court, a competent court, adopted the tribunal award and issued a decree, giving it the finality of a court decision. The proper course was appeal or setting aside, not a fresh suit. The court allowed the application, struck out the Plaint, and awarded the Defendant costs of the application and the suit.

Key legal issues

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01

Whether an advocate may depone to a supporting affidavit in a matter where he or she represents a party

Holding

The affidavit is properly on record; the rule permits statements of information and belief in interlocutory proceedings showing sources, and the deponent relied on attached proceedings, awards and orders

Reasoning

Order 19 Rule 3(1) confines affidavits to facts within the deponent's knowledge but permits statements of information and belief in interlocutory proceedings with sources shown. The deponent relied on proceedings, awards and orders which she attached, so she could prove the facts stated. Nothing in the rule precludes an advocate from swearing an affidavit in the client's case.

p. 3
02

Whether the suit is res judicata given the prior Kikuyu Land Disputes Tribunal and Provincial Appeals Committee proceedings adopted as court judgments

Holding

The suit is res judicata and an abuse of process; the Plaint was struck out

Reasoning

The same parties and subject matter were litigated before the Kikuyu Land Disputes Tribunal and the Provincial Appeals Tribunal. The award of the Appeals Tribunal was adopted as judgment by the Kikuyu Principal Magistrate's Court with a decree issued, making it a decision of a competent court under section 7 of the Civil Procedure Act. The Plaintiff, having instituted the tribunal proceedings, was estopped from challenging their jurisdiction and should have appealed or sought setting aside instead of filing a fresh suit.

p. 4

Legal principles established

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  • A Land Disputes Tribunal award adopted by a magistrate's court and reduced to a decree acquires the enforceability and finality of a court decision for purposes of res judicata under section 7 of the Civil Procedure Act
  • A party who filed and submitted to a tribunal's jurisdiction is estopped from later challenging that tribunal's jurisdiction in a fresh suit
  • Nothing in Order 19 Rule 3(1) of the Civil Procedure Rules precludes an advocate from swearing an affidavit in his or her client's case

Court orders

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  1. 1.The Defendant's Notice of Motion dated 25th April 2013 is allowed
  2. 2.The Plaint dated 1st October 2012 and filed on 16th October 2012 is struck out for being res judicata
  3. 3.The Plaintiff to meet the costs of the Defendant's application and of the suit

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)section 3(1)
  • Land Disputes Tribunal Act (repealed)section 7(1)
  • Land Disputes Tribunal Act (repealed)section 2
  • Land Disputes Tribunal Act (repealed)section 8(9)
  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 2
  • Civil Procedure RulesOrder 19 Rule 3(1)
  • Civil Procedure RulesOrder 2 Rule 15(1)

Cases cited (5)

  • Ganatra vs Ganatra
    (2007) 1 E.A. 76 (HCK)
  • Muhia vs Mutura
    (1999) 1 EA 209
  • R vs Mary Wambui Kihiu & Others ex.p Michael Njuguna Muthoni
    Nairobi JR ELC No 75 of 2011
  • Pattni vs Ali and Others
    (2005) 1 EA 339 (CAK)
  • D.T. Dobie & Company (Kenya) Ltd. v. Muchina
    [1982] KLR 1
Jurisdiction invoked
Original civil jurisdiction; application under Order 2 Rule 15 of the Civil Procedure Rules, with reference to section 7 of the Civil Procedure Act

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, "James Njuguna Chui v John Njogu Kimani [2014] KEELC 141 (KLR)", Case Analysis (2014). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/141/eng@2014-09-17

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