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ELCDismissedELC Suit (Notice of Motion dated 10th March 2016 arising from a Plaint dated 3rd November 2015), Mombasa· [2017] KEELC 1058 (KLR)

Penguin Holdings Limited v Idd Ibrahim & another [2017] KEELC 1058 (KLR)

Environment and Land Court of Kenya
2 November 2017
CYC. Yano
1,932 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 ruled that a land dispute can't be struck out as 'already decided' when the earlier case never actually decided the same issues between the same parties.

What this practically means

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Executive summary

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The Plaintiff, Penguin Holdings Limited, sued seeking to set aside a judgment of 8th February 2013 in HCCC No.328 of 2010 (OS), in which Iddi Ibrahim and Yusuf Nevi obtained land through adverse possession, and seeking a declaration that it is the absolute registered proprietor of property MN/V/2427 (a portion of the land adjudged), which it claimed had escheated to the Government of Kenya. The Defendants filed a Notice of Motion dated 10th March 2016 seeking to strike out the suit as res judicata and an abuse of the court process, since the Plaintiff's earlier application in HCCC No.328 of 2010 (OS) to be enjoined and to set aside the judgment had been dismissed on 20th November 2014. The Plaintiff opposed, arguing it was never a party to the earlier suit and that the present claim is founded on fraud, not adverse possession. Yano J restated the ingredients of res judicata under Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, drawing on five cited authorities. The court found the earlier claim was not identical, the parties were not the same (the Plaintiff's joinder application having been unsuccessful), and the earlier court expressly declined jurisdiction over the Plaintiff's title claim, leaving it for this Court; hence there was no final determination on the merits. The application to strike out was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is not barred by res judicata because the earlier claim was not identical, the parties were not the same (the Plaintiff was never enjoined in HCCC No.328 of 2010 (OS)), and the issues were not finally determined on the merits - the earlier court declined jurisdiction over the Plaintiff's claim.

Reasoning

The court restated the essential ingredients of res judicata from Section 7 of the Civil Procedure Act and the authorities cited: previous litigation with identical claims (or claims that could have been raised), sameness of parties, jurisdiction of the former court, and a final judgment on the merits. Applying these, the earlier suit concerned adverse possession against Dopwell and the Municipal Council, not the Plaintiff, who failed in its bid to be joined. The earlier court expressly left the legality of the Plaintiff's title for determination by the Environment and Land Court, so no merits determination occurred on the issues now raised.

p. 4
02

Whether the suit is an abuse of the court process warranting striking out

Holding

Since the suit is not res judicata, it is not an abuse of process and will not be struck out.

Reasoning

The Defendants' striking-out application rested principally on the plea that the suit re-litigated matters decided in HCCC No.328 of 2010 (OS), including the dismissal of the Plaintiff's application to set aside the judgment and be enjoined. Having found the res judicata plea unsustainable because the identity-of-parties and merits-determination ingredients were absent, the court concluded the suit could not be struck out as prayed.

p. 4

Legal principles established

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  • A suit is barred by res judicata only where the matter was heard and finally decided on the merits between the same parties or parties claiming under them
  • The res judicata principle applies with the same force to applications, whether final or interlocutory

Court orders

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  1. 1.The Defendants' Notice of Motion dated 10th March 2016 seeking to strike out the suit is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court ActSection 28

Cases cited (5)

  • Bernard Mugo Ndegwa –vs- James Nderitu Githae and 2 others
    (2010) eKLR
  • Nancy Mwangi T/A Worthhlin Marketers –vs- Airtel Networks (K) Ltd. (Formerly Celtel Kenya Ltd) and 2 other
    (2014) eKLR
  • Kamunye & others –vs- Pioneer General Assurance Society Ltd
    (1971) EA 263
  • John Florence Maritime Services Ltd & another vs- Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR
  • MWK –vs AMW
    (2016) eKLR
Jurisdiction invoked
Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act

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, "Penguin Holdings Limited v Idd Ibrahim & another [2017] KEELC 1058 (KLR)", Case Analysis (2017). ELC Suit (Notice of Motion dated 10th March 2016 arising from a Plaint dated 3rd November 2015), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1058/eng@2017-11-02

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