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ELCDismissedHC Misc. Suit No. 76 of 2012(OS) (consolidated with HC ELC No. 2292 of 2007, HCCC No. 1298 of 2006 and HCCC No. 2587 of 1994)· [2015] KEELC 605 (KLR)

Lucky Summer Estate Ltd v Kariuki Gatheca & Resources Ltd & another [2015] KEELC 605 (KLR)

High Court of Kenya
18 February 2015
4,647 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that a claim dismissed for using the wrong court form can be filed again — procedural technicalities do not bar a fresh suit.

What this practically means

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Executive summary

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This judgment by P. Nyamweya J of the High Court at Nairobi, delivered on 18th February 2015, determines a Notice of Motion dated 7th May 2013 by the 5th, 6th and 7th Defendants in HC Misc. Suit No. 76 of 2012(OS) seeking the striking out of the consolidated suits (HC Misc. Suit No. 76 of 2012(OS), HC ELC No. 2292 of 2007, HCCC No. 1298 of 2006) as res judicata and an abuse of process, on the basis that the Plaintiffs' claims for specific performance and adverse possession over LR No. 31/Ruaraka/Nairobi and its subdivisions had been dismissed in HCCC No. 2587 of 1994 on 14th July 2000, a dismissal upheld by the Court of Appeal in Civil Appeal No. 315 of 2000 on 18th September 2001. The Plaintiffs opposed, arguing different parties, different parcels and that adverse possession was never adjudicated, having been dismissed in the 1994 suit only because it was brought by plaint rather than originating summons. The court found the parties privies and the subject matter the same, but held that the 1994 ruling of O'Kubasu J did not finally decide the adverse possession claim, which was dismissed on a procedural technicality; relying on Anaj Warehousing, Wanguhu v Kania and Kibogy v Chemweno, such a matter is not res judicata. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the consolidated suits are res judicata in light of the judgment in HCCC No. 2587 of 1994 and the dismissal of Civil Appeal No. 315 of 2000

Holding

The consolidated suits are not res judicata because the claim for adverse possession was never finally decided on merit; it was dismissed in HCCC No. 2587 of 1994 on the procedural ground that it was brought by plaint rather than originating summons

Reasoning

Although the parties in the consolidated suits are privies of the parties in HCCC No. 2587 of 1994 and the subject matter is the same, the O'Kubasu ruling did not exercise the judicial mind on adverse possession; it declined jurisdiction over the claim because it was pleaded by plaint contrary to then Order XXXVI Rule 3D(1). Relying on Anaj Warehousing, Wanguhu v Kania and Kibogy v Chemweno, a matter not decided on merit is not finally decided, hence not res judicata.

p. 7
02

Whether the parties in the consolidated suits are the same as, or privies of, the parties in HCCC No. 2587 of 1994

Holding

The Plaintiffs in the consolidated suits are either Lucky Summer Estate Ltd, a plaintiff in the 1994 suit, or its shareholders, and are therefore privies litigating under the same title

Reasoning

The court perused the pleadings and found that the Plaintiffs are either Lucky Summer Estate Ltd or its shareholders, and the common Defendant is Kariuki Gateca & Resources or its agents. Privity of interest was therefore established, satisfying the same-parties requirement of section 7 of the Civil Procedure Act.

p. 7

Legal principles established

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  • A matter is res judicata only where it has been heard and finally decided on its merit; a matter dismissed on a procedural technicality is not res judicata
  • The requirements for a successful plea of res judicata are same parties (or their privies), same subject matter, same cause of action and a final judgment
  • The power to strike out pleadings should be exercised sparingly and cautiously

Court orders

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  1. 1.The Notice of Motion dated 7th May 2013 brought by the 5th, 6th and 7th Defendants in HC Misc. Suit No. 76 of 2012(OS) is dismissed and the prayers sought therein are denied
  2. 2.The costs of the said Notice of Motion shall be in the cause
Jurisdiction invoked
Original civil jurisdiction of the High Court; striking out of pleadings under Order 2 Rule 15(1) of the Civil Procedure Rules and res judicata under 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, "Lucky Summer Estate Ltd v Kariuki Gatheca & Resources Ltd & another [2015] KEELC 605 (KLR)", Case Analysis (2015). HC Misc. Suit No. 76 of 2012(OS) (consolidated with HC ELC No. 2292 of 2007, HCCC No. 1298 of 2006 and HCCC No. 2587 of 1994). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/605/eng@2015-02-18

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