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ELCAllowedNot stated in judgment (Plaint dated 1st October 2012, filed 16th October 2012)· [2014] KEELC 154 (KLR)

James Njuguna Chui v John Njogu Kimani [2014] KEELC 154 (KLR)

Environment and Land Court
17 September 2014
2,488 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit because the same dispute had already been decided by a Land Disputes Tribunal whose award had court force.

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 as vexatious, an abuse of process and a nullity, arguing the suit was res judicata. The Defendant contended that the same parties and land dispute (Kikuyu/Kikuyu Block Nos. 1/112, 1/113 and 1/114) had been litigated before the Kikuyu Land Disputes Tribunal and the Provincial Appeals Committee (Tribunal), whose awards were read and adopted as judgments of the court under section 7 of the repealed Land Disputes Tribunal Act. The Plaintiff opposed, arguing the supporting affidavit sworn by Patricia Khisa, the Defendant's advocate, offended Order 19; that res judicata was a matter for trial; and that the tribunals lacked jurisdiction over residential plots within a municipality and their awards were not decisions of a court. Nyamweya J held, first, that nothing in Order 19 Rule 3(1) precludes an advocate from swearing an affidavit for a client, and the affidavit was properly on record. On res judicata, the court held the Plaintiff was estopped from disputing the tribunals' jurisdiction having itself filed the complaint and appeal; that the Kikuyu Principal Magistrate's Court was a competent court which, by adopting the award and issuing a decree, gave it the enforceability and finality of a court decision; and that the prescribed challenge was an appeal to the High Court under section 8(9) of the repealed Act. The suit was found res judicata, vexatious and an abuse of process. The Motion was allowed, the Plaint struck out, with costs to the Defendant.

Key legal issues

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01

Whether an advocate may swear a supporting affidavit for a client

Holding

The affidavit was properly on record; Order 19 Rule 3(1) does not bar advocates from swearing affidavits in their clients' cases, and the deponent relied on annexed proceedings, awards and orders she could prove.

Reasoning

Order 19 Rule 3(1) permits statements of information and belief showing sources and grounds in interlocutory proceedings. The deponent relied on tribunal proceedings, awards and court orders which she attached, so she could prove the facts deponed. Relying on Pattni vs Ali, the court found nothing precluding an advocate from swearing such an affidavit.

p. 3
02

Whether the suit is res judicata

Holding

Yes. The same parties and subject matter were determined by the Kikuyu Land Disputes Tribunal and the Provincial Appeals Tribunal, whose awards were adopted as judgment and decree of the Kikuyu Principal Magistrate's Court, a competent court under section 7 of the Civil Procedure Act.

Reasoning

Section 7 bars trying a matter directly and substantially in issue in a former suit between the same parties before a competent court. The tribunal awards were adopted as judgment under section 7 of the repealed Land Disputes Tribunal Act and a decree issued on 23rd June 2009. The magistrate's court is a subordinate court exercising civil jurisdiction, hence competent. The suit was vexatious and an abuse of process.

p. 4
03

Whether the tribunals' lack of jurisdiction could be raised collaterally

Holding

No. The plaintiff, having filed the complaint and appeal and submitted to the tribunals' jurisdiction, was estopped from challenging it, and should instead have appealed or sought to set aside the awards under section 8(9) of the repealed Act.

Reasoning

The court held that the proper procedure for challenging tribunal awards was an appeal to the High Court on questions of law within specified time limits under section 8(9) of the repealed Land Disputes Tribunal Act. Filing a fresh suit while the awards subsist was impermissible; the plaintiff did not follow the prescribed challenge procedure.

p. 4

Legal principles established

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  • There is nothing in Order 19 Rule 3(1) of the Civil Procedure Rules that precludes an Advocate from swearing an affidavit in his or her client's case, provided sources of information are shown.
  • A Land Disputes Tribunal award adopted as judgment by a magistrate's court under section 7 of the repealed Land Disputes Tribunal Act 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 instituted proceedings before a tribunal and submitted to its jurisdiction is estopped from later challenging that tribunal's jurisdiction in a fresh suit; the proper course is to set aside or appeal the award.

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 shall meet the costs of the Defendant's application and of the suit

Authorities

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Legislation

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

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 and 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 154 (KLR)", Case Analysis (2014). Not stated in judgment (Plaint dated 1st October 2012, filed 16th October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/154/eng@2014-09-17

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