Zephania Gichure Ndungu v Rwaikamba Rwathia Trading Co. Ltd & another [2014] KEELC 537 (KLR)
The bottom line
#The High Court allowed a long-running Nairobi land dispute to proceed to trial because the company seeking to block it failed to prove an earlier case had actually been decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in light of Nairobi HCCC No. 5292 of 1991
The plea of res judicata fails because the Respondents did not prove that the former suit was heard and finally determined on merit, and the 2nd Respondent was not a party to the former suit
The court perused the Plaint in the former suit and found the Applicant was one of five plaintiffs who litigated ownership of assets including the suit properties. However, before res judicata can sustain, the former suit must be shown to have been heard and determined on merit. The Respondents produced only an interlocutory ruling by Bosire J granting injunctions, not the judgment. Additionally, the City Council of Nairobi was not a party to the former suit, so a claim of fraud against it cannot be barred at this interlocutory stage; any mischief is a matter for trial.
Whether the suit should be dismissed for want of prosecution
The application for dismissal for want of prosecution was refused; the Originating Summons was allowed to proceed to hearing on terms
The court agreed that it is the plaintiff's duty to get on with the case and found the Applicant had not offered a satisfactory explanation for the delay of about a year since directions were taken. Dismissal for want of prosecution is, however, discretionary, requiring consideration of whether the delay is prolonged and excusable. Because the dispute dates back to the 1950s and should be put to rest on its merits, the court exercised its discretion under Sections 1A, 1B and 3A of the Civil Procedure Act to allow the suit to proceed, with timelines and costs against the Applicant.
Legal principles established
#- For res judicata to arise, the issue in the former suit must have been heard and finally decided on merit; the plea cannot be sustained without proof of such determination
- The party pleading res judicata bears the burden of availing the judgment and proceedings of the former suit to establish that it was heard and determined on merit
- Setting down a suit for hearing is a joint responsibility of both parties, though it is primarily the duty of the plaintiff to get on with the case
- Dismissal of a suit for want of prosecution is discretionary and turns on whether the delay is prolonged and excusable
Court orders
#- 1.The Applicant's Originating Summons shall proceed to full hearing
- 2.All parties shall comply with the provisions of Order 11 of the Civil Procedure Rules within 45 days from the date of the ruling
- 3.The Applicant shall thereafter set down the suit for hearing within 30 days from the date of compliance with Order 2
- 4.The costs of the application shall be met by the Applicant
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 8) and Section 7 thereof; inherent power to give directions on the Applicant's Originating Summons
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.
- Rimberia v Miriti (Enviromental and Land Originating Summons E016 of 2023) [2024] KEELC 3892 (KLR)[2024] KEELC 3892 (KLR)30 Apr 2024
Cite this brief
#Cite this brief
Caselaw, "Zephania Gichure Ndungu v Rwaikamba Rwathia Trading Co. Ltd & another [2014] KEELC 537 (KLR)", Case Analysis (2014). Not stated in the judgment (suit by Originating Summons concerning land parcels 209/4401/73–81, 209/4401/110–124 and 209/4401/133 Makadara). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/537/eng@2014-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.