John Kisese Nthenge v Toeda Mwasaru & 15 others [2016] KEELC 44 (KLR)

Environment and Land Court

1 July 2016

LGL. GACHERU

1,348 words in judgment

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The bottom line

A Kenyan land court refused to strike out a counterclaim, ruling the plaintiff was re-litigating a decided issue and couldn't prove service was never made.

What this practically means

Executive summary

The Plaintiff, registered proprietor of Mavoko Town Block 3/2101, applied by notice of motion dated 11th May 2015 seeking that the Defendants' Defence and Counterclaim be struck out, the counterclaim be dismissed, and judgment be entered as prayed in the Plaint, on grounds that the Defence and Counterclaim were frivolous, an abuse of process, founded on a contract to which the Plaintiff was not privy, and that the Defendants had failed for over a year to comply with the Court's ruling of 25th February 2014 directing service of the Defence and Counterclaim. The Defendants, through Nyogesa Wafula, secretary of Ushirika Boma Welfare Society, opposed the application, contending that the prayers were res judicata, having been raised in the Plaintiff's application dated 28th March 2013 and determined in the ruling of 25th February 2014, and that service had in fact been effected by a letter dated 28th March 2014. The court held that the prayer for dismissal of the counterclaim offended Section 7 of the Civil Procedure Act as it had already been determined. On striking out, although there was no affidavit of service, the stamped acknowledgments of receipt cast doubt on the Plaintiff's allegations, so the discretion to strike out was not exercised. The Defendants were directed to serve the documents within 7 days and file an affidavit of service, with costs in the cause.

Key legal issues

Res judicata regarding dismissal of the counterclaim

Holding

The prayer for dismissal of the counterclaim is res judicata, having been raised and decided in the ruling of 25th February 2014 on the application dated 28th March 2013 on the same ground (lack of privity of contract)

Reasoning

The earlier application dated 28th March 2013 sought exclusion of the counterclaim on the identical ground that it was founded on a contract to which the Plaintiff was not privy. That ground was considered and determined in the ruling of 25th February 2014, where the court found it convenient to dispose of the counterclaim together with the suit to settle all questions over ownership of the suit property. The Plaintiff neither sought review nor appealed, so Section 7 of the Civil Procedure Act bars the identical relief.

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Striking out the Defence and Counterclaim for non-compliance with directions on service

Holding

Striking out refused; despite the absence of an affidavit of service, the stamped documents and the letter of 28th March 2014 cast doubt on the Plaintiff's allegation of non-service, so the discretion to strike out was not exercised

Reasoning

The court noted there was no affidavit of service proving compliance with the directions of 25th February 2014. However, the Defendants annexed a letter dated 28th March 2014 forwarding the documents, and the attached documents bore stamps of the Plaintiff's counsel, the Land Registrar Machakos and Mbukoni Holdings Limited acknowledging receipt. This created doubt as to the Plaintiff's allegations. The court declined to strike out but directed service within 7 days with an affidavit of service to remove all doubt.

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Legal principles established

Res judicata bars re-litigation of an issue already finally decided between the same parties by a competent court
Affidavits of service are substantive evidence of service, not a mere technicality

Court orders

1.The prayer for dismissal of the counterclaim fails as res judicata under Section 7 of the Civil Procedure Act
2.The Defendants are directed to serve the Defence, counterclaim and supporting documents within 7 days of the date of the ruling and file an affidavit of service immediately thereafter
3.Costs of the application be in the cause

Authorities

Legislation

Civil Procedure ActSection 7
Civil Procedure RulesOrder 17 Rules (3) and (4)

Jurisdiction invoked: Original civil jurisdiction over land dispute; Civil Procedure Act and Civil Procedure Rules (Order 17)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "John Kisese Nthenge v Toeda Mwasaru & 15 others [2016] KEELC 44 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/44/eng@2016-07-01

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