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ELCDismissedNyeri ELC Case (Plaint dated 18th July 2012)· [2016] KEELC 568 (KLR)

Fredrick Wachira Ndegwa subst. (Deceased) Ndegwa Wachira) v District Land Registrar, Nyeri & another [2016] KEELC 568 (KLR)

Environment and Land Court
12 July 2016
LWL N Waithaka
1,319 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued by plaint dated 18th July 2012 seeking, inter alia, general damages for alleged tortious acts by the defendants concerning suit property Tetu/Unjiru/172. Both defendants raised preliminary objections: the 2nd defendant pleaded that the suit was res judicata CMCC No. 157 of 1979 and HCCC No. 300 of 1996, while the 1st defendant contended that the suit contravened the Government Proceedings Act, the Public Authorities Limitations Act and the Civil Procedure Act, and sought a declaration that the plaintiff was a vexatious litigant. The objections were disposed of by written submissions. The court traced the long history of the dispute, notably the Court of Appeal's account in Civil Appeal No. 306 of 2005, which explained that judgment had been entered in terms of an elders' arbitration award, on the strength of which the suit land was sold to the 2nd defendant as a purchaser for value. Holding that the issues in the suit had been heard and finally determined by courts of competent jurisdiction, the court found that Section 7 of the Civil Procedure Act barred the suit and that it lacked jurisdiction to entertain it. The preliminary objection was upheld and the suit dismissed with costs to the respondents. On the vexatious litigant application, the court declined to make the declaration, holding that the plaintiff had first to be subjected to the process contemplated by the Vexatious Proceedings Act, Cap 41. Judgment was delivered at Nyeri on 12th July 2016 by L N Waithaka, Judge.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata the former proceedings concerning the suit property Tetu/Unjiru/172, which was determined by courts of competent jurisdiction; this court therefore lacks jurisdiction to entertain it.

Reasoning

The dispute had been litigated in CMCC No. 157 of 1979 (determined by an arbitration award adopted as judgment), HCCC No. 300 of 1996 and successive appeals. The Court of Appeal in Civil Appeal No. 306 of 2005 had definitively addressed the plaintiff's claim to the suit property, including the effect of Civil Appeal No. 44 of 1984. The issues having been heard and finally decided by competent courts, Section 7 of the Civil Procedure Act barred relitigation.

p. 3
02

Declaration of vexatious litigant

Holding

The court declined to declare the plaintiff a vexatious litigant in these proceedings because the Vexatious Proceedings Act, Cap 41 prescribes a specific process that was not followed.

Reasoning

Although the court was convinced on the material before it that a case for declaring the plaintiff a vexatious litigant had been made, the declaration could not be made in the current proceedings; the plaintiff had first to be subjected to the process contemplated by Cap 41.

p. 3

Legal principles established

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  • A court lacks jurisdiction to try a suit or issue that has been directly and substantially in issue in a former suit between the same parties or their successors, litigating under the same title, in a court of competent jurisdiction, and heard and finally decided (Section 7, Civil Procedure Act).

Court orders

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  1. 1.Upheld the notice of preliminary objection contained in the 2nd defendant's statement of defence
  2. 2.Dismissed the suit with costs to the respondents
  3. 3.Declined to declare the plaintiff a vexatious litigant

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 7
  • Government Proceedings Actnull
  • Public Authorities Limitations Actnull
  • Vexatious Proceedings Act, Cap 41 Laws of Kenyanull

Cases cited (4)

  • Civil Appeal No. 15 of 1997
  • Nyeri Court of Appeal Civil Appeal No. 306 of 2005
  • Suit No. 157 of 1979 (CMCC)
  • Nairobi Court of Appeal Civil Application No. 44 of 1984
Jurisdiction invoked
Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya (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, "Fredrick Wachira Ndegwa subst. (Deceased) Ndegwa Wachira) v District Land Registrar, Nyeri & another [2016] KEELC 568 (KLR)", Case Analysis (2016). Nyeri ELC Case (Plaint dated 18th July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/568/eng@2016-07-12

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