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ELCPartially AllowedNotice of Motion dated 2nd March 2012 (in the principal suit)· [2017] KEELC 1728 (KLR)

Jerald Wangae Kimani & another v Monica Wambui Kamau & another [2017] KEELC 1728 (KLR)

High Court of Kenya
29 September 2017
LGL. GACHERU
1,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's High Court struck out a fresh land suit because the same dispute over the same Limuru property had already been decided between the same parties.

What this practically means

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Executive summary

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The 1st Defendant, Monica Wambui Kamau, moved the High Court by Notice of Motion dated 2nd March 2012 under Order 2 Rule 15(1)(b) and (c), Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking striking out of the Plaintiffs' suit with costs. She contended the suit was res judicata because HC OS No. 263 of 2005, between the same parties and over the same parcel LR No. Limuru/Kamirithu/716, had been heard and decided in her favour on 8th February 2011 by Muchelule J, and further that the suit was time-barred under the Limitation of Actions Act. The Plaintiffs, administrators of the estate of Ayub Ngugi Kimani, opposed through a Replying Affidavit asserting that no counterclaim lay in the earlier suit and that an appeal and stay application had been lodged, but no evidence of a stay or reversal of the earlier judgment was produced. The court applied the five-element res judicata test from Bernard Mugo Ndegwa v James Nderitu Githae and the cautionary striking-out principles in Nguruman, Co-operative Merchants Bank and DT Dobie, and held that the parties, subject matter and issues were identical and finally determined, rendering the instant suit res judicata and an abuse of process. The Notice of Motion was allowed entirely with costs to the 1st Defendant, the suit was struck out, and notice of entry of the ruling was to be served on the Plaintiffs.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata as the same parties litigated the same subject matter (LR No. Limuru/Kamirithu/716) in HC OS No. 263 of 2005, which was heard and finally decided by Muchelule J on 8th February 2011

Reasoning

The court applied the five-element test from Bernard Mugo Ndegwa v James Nderitu Githae and found all elements satisfied: the parties, the subject matter and the issues were identical to those in HC OS No. 263 of 2005, which was decided on the merits by a competent court. No stay of execution was issued nor was the earlier judgment overturned on appeal, so the suit could not stand.

p. 3
02

Whether striking out is an appropriate remedy

Holding

Although striking out is a draconian act resorted to only in plain cases, the suit here plainly fell within Order 2 Rule 15 as an abuse of process, so striking out was merited

Reasoning

The court acknowledged the cautionary principles in Nguruman, Co-operative Merchants Bank and DT Dobie requiring judicious exercise of the striking-out discretion. Having found the suit res judicata, it concluded the discretion was properly exercised in a plain case where the issues had already been adjudicated on the merits.

p. 4

Legal principles established

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  • The power to strike out pleadings is discretionary and must be exercised with the greatest care and caution
  • A suit should not be summarily dismissed unless it is hopeless and plainly discloses no reasonable cause of action
  • The res judicata test requires identical matters, same parties, concurrence of jurisdiction, same subject matter and final determination
  • The doctrine of res judicata prevents multiplicity of suits and ensures litigation comes to an end

Court orders

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  1. 1.The Notice of Motion dated 2nd March 2012 is allowed entirely with costs to the 1st Defendant/Applicant
  2. 2.The suit is struck out
  3. 3.Notice of entry of the Ruling to be served on the Plaintiff/Respondent by the 1st Defendant/Applicant
Jurisdiction invoked
Order 2 Rule 15(1)(b) and (c) and Order 51 Rule 1 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (inherent power)

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, "Jerald Wangae Kimani & another v Monica Wambui Kamau & another [2017] KEELC 1728 (KLR)", Case Analysis (2017). Notice of Motion dated 2nd March 2012 (in the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1728/eng@2017-09-29

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