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ELCStruck OutNot stated in the judgment· [2017] KEELC 119 (KLR)

Charity Njanja Mwaniki (Suing on her behalf and 8 other siblings) v James Mwaniki Gaturu & another [2017] KEELC 119 (KLR)

Environment and Land Court
15 November 2017
MOM.C. Oundo
1,824 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land suit was struck out because the same family dispute had already been decided, confirming that re-filing old claims adds costs without changing outcomes.

What this practically means

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Executive summary

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The Environment and Land Court at Nyahururu (M.C. Oundo J) determined two applications by the 2nd Defendant: a Notice of Preliminary Objection dated 21 January 2015 and a Motion dated 23 March 2016 under Section 3A and 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, both seeking striking out of the plaintiffs' Originating Summons claiming rights and interest in land parcels Nyandarua/South Kinagop/3377, 3379, 3380, 3381 and 3382 as res judicata. The applications were undefended; the court directed they proceed without the Plaintiffs' participation. The prior suit, Nakuru HCC No. 189 of 2001 (Esther Wangui Ndungu v James Mwaniki Gaturu), was decided by D.K. Maraga J on 15 October 2009, granting the 2nd Defendant eviction and a perpetual injunction on finding she was the registered proprietor and the 1st Defendant's claim rested on a void transaction; no appeal was filed. Applying Mukisa Biscuits on preliminary objections and the five-limb test in Bernard Mugo Ndegwa, the court upheld the objection, holding the issues identical, the parties the same or litigating under the same title (the Plaintiffs being the 1st Defendant's children, thus estopped), the jurisdiction concurrent and the prior decision final. Retrying the suit would amount to the High Court sitting on appeal over its own decision, permissible only through review, which the Plaintiffs had not pursued. The suit was struck out and/or dismissed as res judicata and an abuse of process, with costs to the 2nd Defendant.

Key legal issues

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01

Whether the preliminary objection was sustainable

Holding

Upheld, as the court lacks jurisdiction under section 7 of the Civil Procedure Act to try a matter already decided by a competent court

Reasoning

Applying Mukisa Biscuits, res judicata is a pure point of law apparent from the pleadings. A judgment in Nakuru HCCC No. 189 of 2001 between parties claiming under the same title finally decided the same issues concerning the suit parcels. Under section 7, the court cannot try the subsequent suit, so the objection disposes of it.

p. 2
02

Whether the present suit is res judicata

Holding

Yes; the issues, parties and title are the same, the prior decision was final and by a competent court, and the plaintiffs are estopped as children of the 1st Defendant

Reasoning

Applying the five-part test from Bernard Mugo Ndegwa, the court found identical issues, sameness of parties (plaintiffs are the 1st Defendant's children litigating under the same title), concurrence of jurisdiction and finality. The plaintiffs did not appeal the prior judgment, so trying the suit anew would amount to sitting on appeal over Justice Maraga's decision.

p. 3

Legal principles established

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  • A preliminary objection may comprise a plea of res judicata which disposes of the suit as a point of law
  • Parties cannot evade res judicata by adding parties or causes of action in a subsequent suit
  • The High Court cannot overturn its own decision except by review

Court orders

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  1. 1.The present suit is struck out and/or dismissed as res judicata and an abuse of the court process.
  2. 2.Costs awarded to the 2nd Defendant/Applicant.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Bernard Mugo Ndegwa v James Nderitu Githae and 2 Others
    (2010) eKLR
  • E.T v Attorney General & Another
    (2012) eKLR
  • Omondi v National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu v Wambugu and another Nairobi HCCC No. 2340 of 1991
    (unreported)
Jurisdiction invoked
Section 7 of the Civil Procedure Act Cap 21 (res judicata); matter struck out for lack of jurisdiction over a previously decided suit

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charity Njanja Mwaniki (Suing on her behalf and 8 other siblings) v James Mwaniki Gaturu & another [2017] KEELC 119 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/119/eng@2017-11-15

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