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ELCStruck OutNot stated in judgment (application dated 13th July 2015)· [2017] KEELC 263 (KLR)

Esther Nzingo Kalume v Lawrence Shariff Samson Katite [2017] KEELC 263 (KLR)

Environment and Land Court
20 July 2017
1,577 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 struck out a land suit because it re-opened a dispute already settled by an earlier consent judgment.

What this practically means

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Executive summary

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The defendant brought a notice of motion dated 13th July 2015 seeking to strike out the plaintiff's suit as res judicata, or alternatively a stay with directions to execute the decree in Kilifi SRMCC No. 66 of 2006 (Rachel Kavumbi v Lawrence Shariff Samson Katite), or in the further alternative transfer of the suit to the Malindi ELC. The defendant contended that a consent judgment in the Kilifi suit settled the matter, including the sale and purchase price over sub-division number 4593/III/MN. The plaintiff opposed, arguing the issues and parties in the former suit were not the same, that the Kilifi court lacked jurisdiction because the title was registered under the Registration of Titles Act (repealed), and that transfer to Malindi would defeat the overriding objective since the land at Mtwapa is nearer Mombasa. The court identified the section 7 Civil Procedure Act elements of res judicata and found the subject land identical, with the plaintiff claiming through her mother, the former plaintiff, by succession under a grant issued 29th June 2009. The former plaint pleaded a sale with a purchase price of Kshs 75,000 plus ground rent arrears, and the consent judgment was inclusive of the purchase price. The jurisdictional objection failed because registration occurred on 10th July 2011, long after the former suit was concluded on 26th March 2008. The court held the claim res judicata, struck out the suit, found nothing remained to transfer, and awarded the defendant costs of both the application and the suit.

Key legal issues

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01

Whether the suit is res judicata having regard to the consent judgment in Kilifi SRMCC No. 66 of 2006/2007

Holding

The suit is res judicata; the consent judgment in the former suit covered the sale and purchase price over the same land, and the present plaintiff claims through the former plaintiff by succession

Reasoning

The court found the subject land identical, and the parties the same through succession: the plaintiff acquired her rights from her mother, the former plaintiff. The former plaint pleaded a sale and unpaid purchase price of Kshs 75,000 and ground rent arrears, and the consent judgment was inclusive of the purchase price, showing a sale took place. The plaintiff could not generate a new cause of action on sale over the same land. The jurisdictional objection based on the Registration of Titles Act failed because registration occurred only on 10th July 2011, long after the former suit was finalised on 26th March 2008.

p. 2
02

Whether the Kilifi magistrate's court lacked jurisdiction because the title is registered under the Registration of Titles Act (repealed)

Holding

The objection fails; the former suit concerned purchase price and ground rent, and registration under the Act occurred only after the former suit was concluded

Reasoning

The plaintiff became registered owner on 10th July 2011, whereas the consent order in the former suit was made on 26th March 2008 in a suit filed on 25th January 2007. The former claim was for a money sum (Kshs 114,000), mesne profits and costs, with no mention of registration under the Act, as the land had no title then. Accordingly the competence of the magistrate's court could not arise.

p. 2
03

Whether the alternative prayers for stay/execution and transfer to Malindi ELC should be granted

Holding

Neither prayer was necessary; striking out the suit left nothing to stay or transfer

Reasoning

Having allowed prayer 1 and struck out the suit as res judicata, the court held there was nothing remaining to transfer to Malindi ELC for trial and determination, which disposed of prayers 2 and 3 of the motion.

p. 3

Legal principles established

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  • A party who acquires rights through succession from a former litigant cannot generate a new cause of action over the same subject land already determined between the parties' predecessors/successors in title
  • Elements of res judicata under section 7 of the Civil Procedure Act: determination by a competent court, same parties or those through whom they claim, and same subject matter

Court orders

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  1. 1.The suit be and is struck out for being res judicata
  2. 2.Costs of the application and of the suit awarded to the defendant

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 7
  • Civil Procedure Act (Cap 21)section 34
  • Civil Procedure Act (Cap 21)sections 1A & 1B
  • Civil Procedure Rules 2010Order 51 Rule 4
  • Constitution of Kenya 2010Article 162(2)(b)
  • Environment and Land Court Act 2011section 13(1)
  • Registration of Titles Act (repealed)null

Cases cited (1)

  • Isadore Bagorogoza vs Bazillio Mbarinda
    (1959) EA
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011 (invoked in submissions)

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, "Esther Nzingo Kalume v Lawrence Shariff Samson Katite [2017] KEELC 263 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 13th July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/263/eng@2017-07-20

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