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ELCDismissedNot stated in the judgment· [2017] KEELC 1312 (KLR)

Geoffrey Ndichu Muiruri v Joseph Ndura Mbuchiri [2017] KEELC 1312 (KLR)

Environment and Land Court
27 October 2017
LGL. GACHERU
1,864 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Geoffrey Ndichu Muiruri sued John Ndura Mbuchiri on 6th February 2017 seeking general damages for trees cut and tea and coffee bushes harvested on land parcel LR Komothai/Gathugu/2148, a permanent injunction against further cutting and harvesting, and interest. Simultaneously he filed a Notice of Motion dated 2nd February 2017 seeking an interim injunction pending determination of the suit. He alleged that following a contradictory Government Surveyor's report of 7th November 2014, boundaries were re-aligned, his parcel lost access to a permanent river, and the Defendant had been harvesting his crops and cutting his trees without compensation. The Defendant filed a Notice of Preliminary Objection contending the suit was res judicata and offended Order 7 of the Civil Procedure Rules, and a Replying Affidavit denying trespass, asserting he was the registered owner of LR Komothai/Gathugu/1283, and that the boundary dispute had been resolved by a consent in Kiambu CMCC No. 164 of 2010, with the District Surveyor's report of 20th July 2015 adopted and the matter marked settled. The Plaintiff failed to file written submissions despite being given a last chance on 21st June 2017. Applying Section 7 of the Civil Procedure Act and the Mukisa Biscuit test for preliminary objections, the court found the same parties had litigated the same issues, including an identical injunction application, in the earlier suit, which was concluded by a consent order adopted by a competent court and never appealed or set aside. The court upheld the preliminary objection, dismissed the suit and application entirely as res judicata, and awarded costs to the Defendant, payable by the Plaintiff.

Key legal issues

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01

Whether the Notice of Preliminary Objection is a proper preliminary objection

Holding

It qualifies because it raises the pure point of law of res judicata capable of disposing of the matter preliminarily

Reasoning

Applying Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd, the court held that res judicata is a point of law argued on the assumption that all pleaded facts are correct, requiring no ascertainment of facts or exercise of judicial discretion, and is capable of disposing of the matter preliminarily.

p. 3
02

Whether the suit and application are res judicata

Holding

Yes. The same parties, litigating under the same title, had the same issues determined by a consent order adopted by a competent court in Kiambu CMCC No. 164 of 2010, which was not appealed or set aside

Reasoning

The court found a previous suit between the same parties involving the same issues, including an earlier identical injunction application. A consent order was adopted by a court of competent jurisdiction, closing the matter. No appeal was filed and the orders remain in force, so Section 7 of the Civil Procedure Act bars this suit.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law capable of disposing of the matter without ascertaining facts or exercising judicial discretion
  • Under Section 7 of the Civil Procedure Act, a court shall not try a suit or issue directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally decided by a competent court
  • The object of res judicata is to bar multiplicity of suits and guarantee finality to litigation

Court orders

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  1. 1.The Preliminary Objection dated 11th April 2017 is allowed
  2. 2.The suit and the Notice of Motion dated 2nd February 2017 are dismissed entirely for being res judicata
  3. 3.Costs of the suit are borne by the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 7

Cases cited (3)

  • Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd
    (1969) EA 697
  • Abdul Kassim Hassanah Gulamhussein Khala v Southern Credit Banking Corporation Ltd
    Mombasa HCCC No. 270 of 2005
  • Ngugi v Kinyanjui & Others
    (1989) KLR 146
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; suit dismissed on res judicata under Section 7 of the Civil Procedure 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, "Geoffrey Ndichu Muiruri v Joseph Ndura Mbuchiri [2017] KEELC 1312 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1312/eng@2017-10-27

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