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ELCStruck OutNot stated in the judgment (Notice of Motion dated 8th October 2016 in a Plaint filed 9th April 2015, amended 12th October 2016)· [2017] KEELC 940 (KLR)

Amina Mbarak & 4 others v Rasto Gwiyo Mikaya & another [2017] KEELC 940 (KLR)

Environment and Land Court
15 November 2017
2,277 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The five Plaintiffs, administrators and beneficiaries of the estate of Charo Ruwa Mwagona, sued the 1st and 2nd Defendants seeking cancellation of the Defendants' registrations over parcels Kilifi/Mtondia/903 and 904 (subdivided from Kilifi/Mtondia/77), restoration of the original title and vacant possession, alleging the land had been fraudulently transferred. The Plaintiffs also moved by Notice of Motion dated 8th October 2016 for inhibition orders against further dealings on the parcels pending trial, apprehending alienation or charging to third parties. Both Defendants filed statements of defence and counterclaims and a preliminary objection that the suit was an abuse of process for being filed out of time under Section 7 of the Limitation of Actions Act. The court noted that the 1st Defendant had previously sued the Plaintiffs and the deceased in Mombasa High Court Civil Case No. 453 of 2000 for vacant possession, in which Mwera J on 11th November 2005 dismissed both the suit and counterclaim after determining ownership, the validity of the sale agreement and whether property in the plot had passed. Holding that the present suit raised the very same issues between the same parties, the court invoked Section 7 of the Civil Procedure Act on res judicata and the John Florence Maritime Services rationale for finality in litigation. It struck out both the Notice of Motion and the Plaint with costs to the Defendants, and also struck out the Defendants' two counterclaims with no order as to costs.

Key legal issues

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01

Whether the Plaintiffs' suit and application are barred by res judicata

Holding

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

Reasoning

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.

p. 4
02

Whether the Plaint, application and counterclaims should be struck out

Holding

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

Reasoning

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.

p. 5
03

The preliminary objection on limitation under Section 7 of the Limitation of Actions Act

Holding

Not expressly determined; the court disposed of the matter on res judicata grounds

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 8th October 2016 is struck out with costs to the Defendants
  2. 2.The Plaint as filed and amended on 12th October 2016 is struck out with costs to the Defendants
  3. 3.The two Counterclaims filed by the 1st and 2nd Defendants are struck out with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 7

Cases cited (2)

  • John Florence Maritime Services Ltd & Another -vs- Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Mombasa High Court Civil Case No. 453 of 2000 (Rasto Gwiyo Mikaya v Charo Ruwa Mwagona & Others)
Jurisdiction invoked
Section 7 of the Civil Procedure Act (res judicata); original civil jurisdiction over land dispute

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, "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.