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ELCDismissedNot stated in the extract· [2017] KEELC 2623 (KLR)

Peter Githiiyi Wanjiru & 3 others v Kioi Githiiyi & another [2017] KEELC 2623 (KLR)

Environment and Land Court
27 June 2017
SOS. OKONG'O
373 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to evict a family from Githunguri land, ruling the case was not a repeat of an earlier dismissed suit.

What this practically means

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Executive summary

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The Defendants brought a Notice of Motion dated 30th March 2016 seeking vacant possession and eviction of the Plaintiffs from L.R No. Githunguri/Githiga/T.326 on the grounds that the Plaintiffs' suit was res judicata and that the Plaintiffs were trespassers. The court considered the supporting affidavit, the replying affidavit sworn by the 1st Defendant and the submissions of the Defendants' advocate. The court held that the plea of res judicata failed: Kiambu Civil Suit No. 505 of 1993 had been brought by the 1st Plaintiff in his personal capacity seeking transfer of the suit property to his name, and had been struck out on a preliminary objection rather than heard on merit. The present suit was brought by four Plaintiffs, three of whom were not parties to the earlier suit, in their capacity as administrators and beneficiaries of the estate of Mary Wanjiru Githiiyi (deceased). The court was not persuaded that the issues in the present suit were directly and substantially in issue in the earlier suit, nor that the parties were the same, and therefore held that the conditions for res judicata had not been met. The application failed wholly and was dismissed with costs to the Plaintiffs. Judgment was delivered at Nairobi on 27th June 2017 by S. Okong'o, Judge.

Key legal issues

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01

Whether the suit is res judicata in respect of Kiambu Civil Suit No. 505 of 1993

Holding

The plea of res judicata fails because the former suit was struck out on a preliminary objection and not heard on merit, different parties were involved, and the issues were not directly and substantially in issue.

Reasoning

Kiambu Civil Suit No. 505 of 1993 was brought by the 1st Plaintiff personally seeking transfer of the suit property to his name. It was struck out on a preliminary objection, so it was never determined on merit. The present suit is brought by four Plaintiffs, three of whom were not parties to the earlier suit, in their capacity as administrators and beneficiaries of the estate of Mary Wanjiru Githiiyi (deceased). Neither identity of parties nor of issues was established, so the conditions for res judicata were not met.

p. 1

Legal principles established

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  • Res judicata requires that the issues were directly and substantially in issue in the former suit and that the parties are the same; a suit struck out on a preliminary objection, not heard on merit, cannot found a plea of res judicata

Court orders

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  1. 1.The Defendants' Notice of Motion application dated 30th March 2016 is dismissed with costs to the Plaintiffs
Jurisdiction invoked
Original civil jurisdiction over the suit property (land dispute); specific provision not stated

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, "Peter Githiiyi Wanjiru & 3 others v Kioi Githiiyi & another [2017] KEELC 2623 (KLR)", Case Analysis (2017). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2623/eng@2017-06-27

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