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ELCStruck OutEmbu ELC Case (plaint dated 24th January 2008, filed 5th June 2008)· [2017] KEELC 1264 (KLR)

Julius Nyaga M. Njenga v Charity Kairu & 5 others [2017] KEELC 1264 (KLR)

Environment and Land Court
19 October 2017
2,716 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A 2008 land lawsuit based on a 1977 sale agreement was struck out because the dispute had already been decided and time had long run out.

What this practically means

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Executive summary

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The Plaintiff sued the 1st Defendant by plaint dated 24th January 2008 seeking specific performance of a sale agreement dated 14th March 1977 for 4 acres out of Title No. Gaturi/Weru/832, alleging full payment of Kshs 14,500/-. By an amended plaint, he joined the 2nd to 6th Defendants, alleging the 1st Defendant had fraudulently subdivided the suit property into parcels 1485, 1486 and 1487 and transferred them to third parties, and sought nullification of titles, transfer, or alternatively refund of the purchase price and general damages. The 2nd Defendant raised a notice of preliminary objection dated 18th July 2017 contending that the suit was res judicata under section 7 of the Civil Procedure Act, having been litigated and dismissed in Runyenjes RMCC No. 16 of 1991, and was statute barred under sections 4(1) and 7 of the Limitation of Actions Act. The court declined to treat the third objection (no valid claim) as a preliminary objection, holding that it required a formal application. On res judicata, the court held that the same subject matter, parties and agreement were litigated previously; the Runyenjes magistrate's court was competent notwithstanding any error, and the Plaintiff's remedy was appeal or review. The court also held the suit statute barred, being mainly for recovery of land subject to a 12-year limitation period, based on a 1977 agreement. The preliminary objection partially succeeded; the entire suit was struck out with costs to the 2nd Defendant.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata; the same subject matter and parties were litigated in Runyenjes RMCC No. 16 of 1991, and adding defendants or an alternative claim does not change the character of the proceedings.

Reasoning

The court found the four conditions of section 7 satisfied: same subject matter (4 acres out of Gaturi/Weru/832), same sale agreement of 14th March 1977, same Plaintiff litigating against the Defendant, and a competent prior court. The Runyenjes court's alleged error in setting aside the arbitral award did not render it incompetent; the remedy was appeal or review, neither pursued. The subdivision predated the earlier suit and could have been discovered with diligence.

p. 5
02

Limitation of actions

Holding

The suit is statute barred; being mainly for recovery of land, the 12-year period under section 7 of the Limitation of Actions Act applies, and the claim based on a 1977 agreement is long out of time.

Reasoning

The court accepted the cause of action accrued at latest by the time of the 1991 suit, so a suit filed in 2008 far exceeded even the 12-year period for recovery of land, let alone 6 years for contract. No leave to file out of time was sought. The Plaintiff's counsel did not submit on limitation, and the court held a cause of action cannot remain alive indefinitely.

p. 5
03

What constitutes a preliminary objection

Holding

The third objection (no valid claim against the 2nd Defendant) is not a preliminary objection properly so called, as it requires ventilation of facts; only the res judicata and limitation objections were considered.

Reasoning

Relying on the Mukisa Biscuits definition, the court held that an objection going to whether the Plaintiff has a valid claim or reasonable cause of action requires factual inquiry and should have been raised by formal application under the Civil Procedure Rules, not by preliminary objection.

p. 2

Legal principles established

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  • A magistrate's court does not lose competence jurisdiction because it may have erred; errors are to be corrected on appeal, and a party who litigated before it cannot later assert lack of jurisdiction.
  • The principles of res judicata extend beyond section 7 of the Civil Procedure Act, which is not exhaustive.
  • Ignorance of the law cannot dislodge the application of res judicata.

Court orders

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  1. 1.The notice of preliminary objection dated 18th July 2017 partially succeeds
  2. 2.The Plaintiff's suit is struck out in its entirety
  3. 3.Costs of the suit to the 2nd Defendant

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 7
  • Civil Procedure Act (Cap 21)sections 1A and 1B
  • Limitation of Actions Act (Cap 22)sections 4(1) and 7
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Rulesrelevant provisions on applications (not specified)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors Ltd
    [1969] EA 696
  • Njue Ngai Vs Ephantus Njiru Ngai & Another
    Nyeri Civil Appeal No. 29 of 2015
  • Attorney General Vs Andrew Maina Githinji & Another
    Nyeri Civil Appeal No. 21 of 2015
  • Uhuru Highway Development Ltd Vs Central Bank of Kenya & 2 Others
    Nairobi Civil Appeal No. 36 of 1996
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; suit on contract for sale of land (no specific provision invoked)

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, "Julius Nyaga M. Njenga v Charity Kairu & 5 others [2017] KEELC 1264 (KLR)", Case Analysis (2017). Embu ELC Case (plaint dated 24th January 2008, filed 5th June 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1264/eng@2017-10-19

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