Gidion Mike Mbuvi v Registered Trustees of National Christian Council of Kenya & 3 others [2014] KEELC 506 (KLR)
The bottom line
#Kenya's High Court barred Kalonzo Musyoka from relitigating settled land issues against one defendant but let his case continue against others through consolidation.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata as between the Plaintiff and the 1st Defendant
Yes, on the issues of validity of the 1st Defendant's title and the eviction; the Plaintiff litigated under the same title and in privity with Classic Jua Kali Co-operative Society Ltd
Explanation (6) to section 7 deems persons interested in a right litigated bona fide by others to claim under them. The Plaintiff sought to litigate the same interests as Classic Jua Kali Co-operative Society Ltd over the same property, and was himself enjoined as an Interested Party in CMCC No. 7708 of 2012. Under Explanation (4), issues attacking the title ought to have been raised in HCCC No. 932 of 1996.
Whether res judicata applies against the 2nd, 3rd and 4th Defendants
No, because they were not parties to the previous suits and new issues arise from the sale to the 2nd Defendant
Section 7 requires the same parties or parties under whom they claim. The 2nd, 3rd and 4th Defendants were not parties to HCCC No. 932 of 1996 or CMCC No. 7708 of 2012, and issues arising from the sale of the suit property to the 2nd Defendant were not decided in the previous suits.
Whether the suit is sub judice given ELC No. 708 of 2013
Section 6 inapplicable because of non-coincidence of parties, but the suit is an abuse of process since the issues could have been raised by counterclaim in the earlier suit
The 1st, 3rd and 4th Defendants were not parties to ELC No. 708 of 2013 and the 2nd Defendant therein is not party here, so section 6 cannot apply. However, both suits arise from the same sale, and the Plaintiff could have raised his issues by way of counterclaim, making the separate suit an abuse of process remedied by consolidation.
Whether the locus standi objection is a pure point of law
No; it raises facts and the court's discretion under Order 1 Rule 8, so it was dismissed
The court has discretion to allow the Plaintiff to comply with Order 1 Rule 8 on representative suits, and whether he has an individual cause of action requires ascertainment of facts. Under the Mukisa Biscuit test such matters cannot found a preliminary objection.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
- Where multiple parties are joined, res judicata must be assessed party by party so that new parties cannot be added merely to relitigate determined issues
- Under Explanation (6) to section 7 of the Civil Procedure Act, persons litigating the same interest over the same right are in privity with prior litigants
Court orders
#- 1.Upheld the 1st and 2nd Defendants' preliminary objections only to the extent that the Plaintiff's Suit and Notice of Motion dated 22 July 2013 are res judicata as between the Plaintiff and 1st Defendant on the issues of the validity of the 1st Defendant's title to L.R. No. 209/9324 and the eviction of the Plaintiff from the suit property
- 2.Consolidated this suit with Tranquility Development Ltd vs Hon. Gidion Mike Mbuvi & Another, ELC No. 708 of 2013, with ELC No. 708 of 2013 as the lead file
- 3.Deemed the Plaint dated 22 July 2013 to be the Plaintiff's Counterclaim in ELC No. 708 of 2013
- 4.Deemed the 1st and 2nd Defendants' Defences to be Defences to the Plaintiff's Counterclaim
- 5.Directed that the Plaintiff's Notice of Motion dated 22 July 2013 be heard and determined together with the Original Plaintiff's Notice of Motion dated 17 June 2013 in ELC No. 708 of 2013
- 6.Granted parties in the consolidated suits liberty to apply
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (Environment and Land Division); Civil Procedure Act sections 6, 7, 3A and the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Ojwang’ Oundo v National Environment Management Authority & 8 others [2015] KEELC 415 (KLR)[2015] KEELC 415 (KLR)10 Jun 2015
Cite this brief
#Cite this brief
Caselaw, "Gidion Mike Mbuvi v Registered Trustees of National Christian Council of Kenya & 3 others [2014] KEELC 506 (KLR)", Case Analysis (2014). Nairobi ELC Case (Plaint dated 22 July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/506/eng@2014-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.