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ELCDismissedNot stated in judgment (application dated 24/7/2017)· [2017] KEELC 428 (KLR)

David Stephen Kamiri Mbiriri v Washington Njogu Kariuki & 2 others [2017] KEELC 428 (KLR)

Environment and Land Court
22 December 2017
KBK. BOR
447 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer lost his injunction bid because he was re-litigating a dispute already decided against him years earlier.

What this practically means

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Executive summary

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The Plaintiff applied by notice of motion dated 24/7/2017 for an injunction restraining the Defendants from dealing with or interfering with plots N-235 and N-235B, excised from L.R No. 10904/2, pending determination of the suit, with enforcement by the OCS Embakasi Police Station. The Plaintiff asserted he purchased the plots from Muniu Kuria and annexed a sale agreement, share certificate issued by the 3rd Defendant, and photographs. The 1st Defendant opposed, asserting the suit was res judicata, the subject matter having been litigated in Nairobi CMCC No. 4202 of 2004 under descriptions P1935 and P1936, with judgment entered for the 1st Defendant on 17/10/2007; the Plaintiff's application to set aside that judgment was dismissed on 21/7/2011, and a finding of res judicata was made on 30/11/2011. An appeal against the dismissal of the Plaintiff's case on res judicata grounds was dismissed by Judge Mbogholi on 6th April 2017. The court found no prima facie case, noted the Plaintiff had not controverted the res judicata assertion, agreed the suit was res judicata, and dismissed the application dated 24/7/2017 with costs to the 1st Defendant. Judgment delivered at Nairobi on 22nd December 2017 by K. Bor, Judge.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata the subject matter having been litigated in Nairobi CMCC No. 4202 of 2004, with judgment for the 1st Defendant on 17/10/2007, and the appeal against the dismissal of the Plaintiff's case dismissed on 6/4/2017

Reasoning

The 1st Defendant showed that plots N-235 and N-235B correspond to P1935 and P1936 previously litigated. Judgment was entered in 2007, the Plaintiff's attempt to set it aside failed in 2011, and an appeal against dismissal of the Plaintiff's case on res judicata grounds was dismissed by Judge Mbogholi in 2017. The Plaintiff did not controvert the res judicata assertion.

p. 2
02

Prima facie case for interlocutory injunction

Holding

The Plaintiff failed to demonstrate a prima facie case warranting restraint of the Defendants

Reasoning

The Plaintiff's claim of purchase from Muniu Kuria, supported by a sale agreement and share certificate, was insufficient against the 1st Defendant's proof that the suit plots had already been the subject of prior litigation and a decree. The unresolved res judicata bar meant the Plaintiff could not show a triable issue or prima facie case with a probability of success.

p. 2

Legal principles established

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  • A suit whose subject matter was previously litigated and decreed is barred by res judicata and must be dismissed

Court orders

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  1. 1.The application dated 24/7/2017 is dismissed with costs to the 1st Defendant
Jurisdiction invoked
Not stated in the judgment

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, "David Stephen Kamiri Mbiriri v Washington Njogu Kariuki & 2 others [2017] KEELC 428 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 24/7/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/428/eng@2017-12-22

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