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ELCStruck OutNot stated in judgment (Kericho ELC suit; application dated 13th February 2012)· [2016] KEELC 1133 (KLR)

Daniel Chepkwony Bii v Philip Langat & 5 others [2016] KEELC 1133 (KLR)

Environment and Land Court of Kenya
26 February 2016
MSMunyao Sila
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 defendants applied by notice of motion dated 13th February 2012, under Order 2 Rule 15 of the Civil Procedure Rules, 2010, seeking striking out of the plaint filed on 1st February 2012 with costs. The plaintiff, asserting first registration of parcel Kericho/Kipsonoi Settlement Scheme/728 on 10th April 2006 as beneficiary of his late father Kipruto arap Chepkulei, sought eviction of the defendants from that land. The defendants, filing no less than the supporting affidavit of David Langat (the plaintiff filed no replying affidavit or grounds of opposition), showed that the plaintiff's father had already sued the defendants' father in Nakuru HCCC No. 239 of 1994 for eviction from parcel No. 267 and the suit was dismissed on 23rd May 1997 as time barred, with no appeal. The succession cause through which the plaintiff obtained title was revoked by Musinga J on 21st October 2004, yet the plaintiff subdivided parcel No. 267 and obtained title to No. 728. The plaintiff had also previously filed Kericho HCCC No. 94 of 2006 (mandatory injunction) and Nakuru CMCC No. 594 of 2007 (eviction) over the same parcel against the same defendants. The court held the present suit res judicata to those prior suits and an abuse of process, offending Sections 6 and 7 of the Civil Procedure Act, and that the plaintiff could not enforce title founded on a revoked Confirmed Grant. The suit was struck out with costs on 26th February 2016.

Key legal issues

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01

Res judicata and multiplicity of suits

Holding

The suit is res judicata to Kericho HCCC No. 94 of 2006 and Nakuru CMCC No. 594 of 2007, which were filed prior to this suit and involve the same parties, subject matter and relief

Reasoning

The court compared the plaints in the prior suits and found they were against the same defendants over parcel No. 728 seeking similar eviction/injunction orders. Filing this suit while such suits existed, and after the dismissal of Nakuru HCCC No. 239 of 1994 between the parties' fathers, offends Sections 6 and 7 of the Civil Procedure Act and constitutes an abuse of process justifying striking out under Order 2 Rule 15.

p. 3
02

Validity of the plaintiff's title to parcel No. 728

Holding

The plaintiff has no enforceable title because it derives from a Confirmed Grant in the succession cause that was revoked on 21st October 2004

Reasoning

The grant in Nakuru High Court Succession Cause No. 361 of 2001 was revoked by Musinga J on the basis that parcel No. 267 did not form part of the estate, yet the plaintiff subdivided the land pursuant to the revoked grant and obtained title to parcel No. 728. The court held that rights based on such a revoked grant cannot be enforced, so the plaint discloses no sustainable claim.

p. 3

Legal principles established

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  • It is an abuse of the process of court to institute a suit over a cause of action already pending or previously determined, offending the res judicata principle in Sections 6 and 7 of the Civil Procedure Act
  • A party cannot enforce land rights founded on a title derived from a Confirmed Grant that has been revoked

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.Costs of the application and suit to the defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure ActSections 6 and 7
Jurisdiction invoked
Order 2 Rule 15 of the Civil Procedure Rules, 2010; Sections 6 and 7 of the Civil Procedure Act, CAP 21

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, "Daniel Chepkwony Bii v Philip Langat & 5 others [2016] KEELC 1133 (KLR)", Case Analysis (2016). Not stated in judgment (Kericho ELC suit; application dated 13th February 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1133/eng@2016-02-26

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