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ELCDismissedNot stated in the extract (Environment and Land Court, Nyeri)· [2016] KEELC 256 (KLR)

Peter Mbuthia Kamore (Deceased) v Macharia Kamore(Deceased) & 5 others [2016] KEELC 256 (KLR)

Environment and Land Court
19 October 2016
LWL N Waithaka
1,671 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 dismissed a family land dispute application because the same issues had already been decided, showing courts won't tolerate repeated lawsuits.

What this practically means

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Executive summary

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The applicants, Joseph Maina Kagutu alias Joseph Maina Kihoro and Harrison Kamore Kagutu alias Harrison Kamore Kihoro, brought a notice of motion dated 3rd March 2016 seeking to be enjoined in the pending suit as interested parties or substituted for the 3rd defendant, review and setting aside of the ruling and orders of 27th October 2015 and 13th November 2013, stay of execution, a temporary injunction over L.R No. Chinga/Gathera/S.498, and cancellation/revocation of the titles to L.R No. Chinga Gathera S.47 and S.48. They claimed to be the legal representatives of the estate of Kihoro Gachuhi, the 3rd defendant, with beneficial interests in parts of the suit land. The respondents opposed, arguing the application was res judicata the applicants' earlier application dated 25th November 2013, which the Environment and Land Court Nyeri had dismissed on 28th October 2015, that the orders sought were omnibus and incapable of being granted, that there was no pending suit to support joinder, and that there was inordinate delay. The court framed four issues and, on the first, held that the current application was substantially similar to the dismissed former application, save for the applicants' subsequent acquisition of limited letters of administration, and that Section 7 of the Civil Procedure Act barred its re-litigation. Independently, the court found the orders sought incapable of issuing because of the multiplicity of reliefs under a single prayer, citing authority on omnibus applications. The court dismissed the application with costs to the respondents on 19th October 2016.

Key legal issues

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01

Res judicata

Holding

The application dated 3rd March 2016 is res judicata the application dated 25th November 2013, which was heard and dismissed by a court of competent jurisdiction

Reasoning

The applicants' earlier application sought the same reliefs (joinder, stay, review of the orders of 13th October 2013) on substantially the same grounds; the only difference was the subsequent acquisition of letters of administration ad litem and some added grounds. The Environment and Land Court Nyeri was competent to hear the former application and finally determined it, dismissing it with costs. Section 7 of the Civil Procedure Act therefore bars the present application.

p. 3
02

Capability of the orders sought

Holding

The orders sought are incapable of being issued because of the multiplicity of reliefs sought under the same prayer

Reasoning

The court found the application was an omnibus one, incapable of proper adjudication because the various reliefs are governed by different rules and judicial principles, citing Pyaralal Mhand Bheru Rajput v Barclays Bank and the Supreme Court's decision in Aviation & Allied Workers Union v Kenya Airways. The multiplicity of reliefs under one prayer rendered the application incurably defective.

p. 4

Legal principles established

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  • Under Section 7 of the Civil Procedure Act a court is barred from trying an issue directly and substantially in issue in a former suit between the same parties that was heard and finally decided by a court of competent jurisdiction
  • Omnibus applications with multiple reliefs under one prayer are incurably defective

Court orders

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  1. 1.The notice of motion dated 3rd March, 2016 is dismissed
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (2)

  • Pyaralal Mhand Bheru Rajput vs. Barclays Bank & Others
    Civil Case No. 38 of 2004
  • Aviation & Allied Workers Union v. Kenya Airways Limited & 3 Others
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction; Section 7 of the Civil Procedure Act (res judicata)

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, "Peter Mbuthia Kamore (Deceased) v Macharia Kamore(Deceased) & 5 others [2016] KEELC 256 (KLR)", Case Analysis (2016). Not stated in the extract (Environment and Land Court, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/256/eng@2016-10-19

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