Amina Mbarak & 4 others v Rasto Gwiyo Mikaya & another [2017] KEELC 940 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land suit because the same dispute had already been decided, showing courts will not allow repeated litigation over one property.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs' suit and application are barred by res judicata
The suit and application were barred by res judicata because the same issues between the same parties had been heard and finally decided in Mombasa High Court Civil Case No. 453 of 2000 by Mwera J on 11th November 2005
The Plaintiffs, previously Defendants in the Mombasa case, were now litigating ownership and validity of the sale of Kilifi/Mtondia/77 - the very issues Mwera J had pronounced upon, including dismissal of both the suit and the counterclaim. The Defendants' counterclaims in the present suit also revolved around use and occupation of the original parcel, already decided. Section 7 of the Civil Procedure Act therefore applied.
Whether the Plaint, application and counterclaims should be struck out
The Plaint and Notice of Motion were struck out with costs to the Defendants; the two counterclaims were struck out with no order as to costs
Having found the suit and application res judicata, the court exercised its power to strike them out. The counterclaims, though also struck out, attracted no costs order against the Defendants since they too revolved around the already-decided subject of use and occupation of the original parcel.
The preliminary objection on limitation under Section 7 of the Limitation of Actions Act
Not expressly determined; the court disposed of the matter on res judicata grounds
Although the Defendants raised a preliminary objection that the suit was filed out of time contrary to Section 7 of the Limitation of Actions Act, the court's determination rested on res judicata under Section 7 of the Civil Procedure Act, and no specific ruling on the limitation objection is recorded in the judgment.
Legal principles established
#- Res judicata bars a suit or issue where the matter directly and substantially in issue was directly and substantially in issue in a former suit between the same parties or their privies, litigating under the same title, in a competent court and was finally decided
- The rationale of res judicata is that there should be an end to litigation and protection of parties from repetitive litigation over the same subject matter
Court orders
#- 1.The Notice of Motion dated 8th October 2016 is struck out with costs to the Defendants
- 2.The Plaint as filed and amended on 12th October 2016 is struck out with costs to the Defendants
- 3.The two Counterclaims filed by the 1st and 2nd Defendants are struck out with no order as to costs
- Jurisdiction invoked
- Section 7 of the Civil Procedure Act (res judicata); original civil jurisdiction over land dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amina Mbarak & 4 others v Rasto Gwiyo Mikaya & another [2017] KEELC 940 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 8th October 2016 in a Plaint filed 9th April 2015, amended 12th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/940/eng@2017-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.