Monica Njoki Ndegwa v Mary Njeri Kaguongo & 5 Others [2017] KEELC 1009 (KLR)
The bottom line
#A Kenyan court struck out a landowner's bid to cancel subdivisions because he had no judgment orders in his favour and wasn't the deceased defendant's administrator.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is not res judicata because although an earlier application dated 16th February, 2000 sought similar cancellation orders, it was never prosecuted; only the application dated 4th June, 2001 was determined by Kasango J on 6th July 2007, and the prayer for transfer of half share was not addressed.
The court compared the 2000 application with the present one, found the 2000 application was never prosecuted, and noted that the ruling of 6th July 2007 entered judgment in terms of the Tribunal award but did not determine prayer 2 of the 2001 application seeking transfer of half share. Since that question was never determined, Section 7 of the Civil Procedure Act does not bar the present application.
Locus standi of the applicant
The applicant, being the 2nd defendant who was awarded no orders in the judgment adopting the Tribunal award, lacks locus standi to enforce the judgment or seek cancellation of the interested parties' titles, having failed to substitute the deceased 1st and 3rd defendants with their administrators.
The court adopted the Baricho Land Disputes Tribunal award as its judgment, under which only the 1st defendant (mother of the applicant) was awarded 3 acres. The applicant, though a party, received no orders. As he is not an administrator of the 1st defendant's estate and the deceased defendants were not substituted, the court found the application bad in law and declined to address the remaining issues on limitation and the orders to be made.
Legal principles established
#- A party in whose favour no orders were granted in a judgment lacks capacity to enforce that judgment unless he is an administrator of the estate of the party awarded the orders.
- An application is not res judicata under Section 7 of the Civil Procedure Act where the issue raised in it was never heard and finally determined in the earlier application.
Court orders
#- 1.The application dated 8th March, 2016 is struck out
- 2.Costs to the respondent and the interested parties
- Jurisdiction invoked
- Section 34 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica Njoki Ndegwa v Mary Njeri Kaguongo & 5 Others [2017] KEELC 1009 (KLR)", Case Analysis (2017). Notice of Motion dated 8th March, 2016 in the main suit (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1009/eng@2017-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.