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ELCStruck OutNot stated in the judgment· [2017] KEELC 1757 (KLR)

Mwangi Stephen Muriithi v Daniel T. Arap Moi & another [2017] KEELC 1757 (KLR)

Environment and Land Court
21 September 2017
3,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner suing over land already litigated before had his entire case struck out because courts won't relitigate settled disputes.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Ohungo J) determined two preliminary objections by the 1st and 2nd defendants against a suit filed on 3rd March 2017 seeking cancellation of entries on Certificate of Title No. LR No. 11793/2 (I.R. 48615) and eviction of the defendants. The plaintiff, a former director of Mokamu Ltd, alleged that the parent parcel LR No. 11793 was illegally subdivided and disposed of during his detention between 1982 and 1985. He had previously litigated his rights over LR No. 11793 in High Court Petition No. 625 of 2009, where he was awarded Kshs.57,420,000, a decision overturned by the Court of Appeal in Civil Appeal No. 240 of 2011, with an application for leave to appeal to the Supreme Court (Civil Application No. 44 of 2014) pending. The defendants objected that the suit was res judicata, sub judice, and barred for want of jurisdiction. The plaintiff contended the objections rested on disputed facts and that land matters should be heard on the merits under section 19 of the Environment and Land Court Act. The court held the objections were pure points of law because the prior proceedings' facts came from the plaintiff's own pleadings; that a judgment over a whole property covers its subdivisions; that the suit offended sections 6 and 7 of the Civil Procedure Act; and that the anti-technicality provisions create no lower standard for land cases. The suit was struck out with costs to the defendants.

Key legal issues

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01

Whether the preliminary objections were validly raised

Holding

The objections were valid because the facts concerning the prior and pending proceedings were drawn from the plaintiff's own plaint, verified affidavit and bundle of documents, and were uncontested

Reasoning

The court applied the Mukisa Biscuit test. Although the plaintiff argued the objections rested on disputed facts, the judge found that the plaintiff himself pleaded the prior proceedings, verified them by affidavit and attached the judgments. Those facts therefore required no proof, and the objections raised pure points of law on res judicata, sub judice and jurisdiction.

p. 4
02

Whether the suit was res judicata under section 7 of the Civil Procedure Act

Holding

Yes. The same parties had litigated the plaintiff's right to LR No. 11793, of which the suit property was a subdivision, in the High Court and Court of Appeal

Reasoning

The parties were the same, the prior petition and appeal were heard and determined on the merits, and the plaintiff's right to the subdivision and compensation for its loss were in issue. Since the suit property was a subdivision of LR No. 11793, a judgment on the whole property necessarily concerned its fractions.

p. 5
03

Whether the suit was sub judice under section 6 of the Civil Procedure Act

Holding

Yes, because the dispute was pending before the Supreme Court by way of an application for leave to appeal

Reasoning

Supreme Court Civil Application No. 44 of 2014, seeking leave to appeal against the Court of Appeal decision, was pending between the same parties over the same dispute. Proceeding with the suit would therefore offend the statutory bar on parallel proceedings.

p. 5
04

Whether the suit should be struck out despite the court's duty to avoid technicalities

Holding

Yes. Res judicata and sub judice are not technicalities but fundamental principles, and the suit could not be cured by amendment

Reasoning

Although section 19 of the ELC Act and Article 159(2)(d) discourage technicalities, they also bind the court to the Civil Procedure Act. Res judicata sustains the rule of law and finality in litigation. Since the suit could not be saved by amendment, striking out was warranted in this clearest of cases.

p. 6

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
  • A judgment concerning a whole property ipso facto concerns a fraction of it, so a suit over a subdivision may be res judicata
  • The bar on technicalities does not create a lower standard for land cases; courts remain bound by the Civil Procedure Act

Court orders

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  1. 1.The suit is struck out with costs to the defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act, 2011

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, "Mwangi Stephen Muriithi v Daniel T. Arap Moi & another [2017] KEELC 1757 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1757/eng@2017-09-21

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