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ELCStruck Outnot stated in judgment (defendant's preliminary objection dated 28th January 2016)· [2017] KEELC 3033 (KLR)

Margaret Matunda Tengia Jacob Mwakughu Tengia (Suing as Administratix and Administrators of the Estate of the Late Jervan Paul Tengia v County Government of Mombasa [2017] KEELC 3033 (KLR)

High Court of Kenya (Mombasa)
28 April 2017
1,265 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land damages suit because it should have been raised in an earlier case over the same plots.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Jervan Paul Tengia (deceased), sued the successor of the Municipal Council of Mombasa claiming special, general and exemplary damages for the loss of plots 1778/V/MN and 1779/V/MN, alleging the plots were allocated to third parties while their lease was in subsistence. The deceased had previously sued the Council in MSA HCC Civil Case No. 634 of 2001 and obtained a decree, apparently declaratory, requiring surrender of vacant possession, which was not complied with. The defendant filed a preliminary objection dated 28th January 2016 contending the suit was res judicata the 2001 case under section 7 of the Civil Procedure Act and sought its striking out with costs. The plaintiffs opposed by grounds of opposition and submissions, arguing the objection was not a pure point of law (citing Mukisa Biscuits) and that failure to execute the decree gave rise to a fresh cause of action (citing Ghela Marex Shah). The court held that the plaintiffs did not dispute that the 2001 suit was heard and finally determined by a court of competent and concurrent jurisdiction between parties litigating under the same title; that the grievance - illegal repossession of the plots - was identical in both suits; and that the deceased knew of the allocation before the former suit concluded and could have claimed damages there. Inability to execute the decree did not create a new cause of action. The objection was strictly premised on sections 7 and 8 of the Civil Procedure Act and was therefore a pure point of law. The preliminary objection was upheld and the suit struck out with costs on 28th April 2017.

Key legal issues

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01

Whether the suit is res judicata HCC Civil Case No. 634 of 2001

Holding

Yes - the matter directly and substantially in issue was heard and finally determined by a court of competent and concurrent jurisdiction, between parties litigating under the same title

Reasoning

The plaintiffs did not deny that suit No. 634 of 2001 was heard and determined by a court of competent and concurrent jurisdiction and that they litigate under the same title as the deceased's administrators. The dispute concerned the same plots (1778/V/MN and 1779/V/MN) and the same grievance - illegal repossession/allocation to third parties - which the deceased knew of before the former suit concluded, so damages ought to have been claimed there.

p. 2
02

Whether failure to execute the decree in the former suit created a new cause of action

Holding

No - the cause of action arose at the same time as the former suit, not after its decree; inability to execute does not generate a fresh cause of action

Reasoning

The plaint itself pleads that the deceased discovered before the former suit was concluded that the plots had been allocated to other parties. He could have amended his pleadings to seek damages in the alternative. The claim that the suit was filed because the decree could not be executed does not create a new cause of action; litigation must come to an end.

p. 3
03

Whether the preliminary objection satisfies the Mukisa Biscuits test of a pure point of law

Holding

Yes - it is strictly premised on sections 7 and 8 of the Civil Procedure Act, which are purely points of law

Reasoning

The plaintiff argued the objection failed the Mukisa Biscuits test because it depended on facts, but the court held the objection was grounded solely on the statutory provisions on res judicata, requiring no ascertainment of fact, and was therefore properly a preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection premised on sections 7 and 8 of the Civil Procedure Act (res judicata) is a pure point of law within the Mukisa Biscuits principle
  • A party who could have sought an alternative remedy (damages) in a former suit cannot found a new cause of action on failure to execute the decree in that suit

Court orders

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  1. 1.The preliminary objection dated 28th January 2016 is upheld and the plaintiff's suit is struck out as res judicata
  2. 2.Costs of the preliminary objection to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7 (including Explanation (4))
  • Civil Procedure ActSection 8

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors
    (1969) E.A 696
  • Ghela Marex Shah & Another vs Mohamed H. Abdulla & Another
    (1962) E A
  • Abdul Kassim Hassanali Gulam Hussein Khala vs Southern Credit Banking Corporation Ltd
    Civil Case No. 270 of 2005
  • Lilian Njeri Muranja & 2 Others vs Virginia Nyambura Ndiba and Kajiado County Government
    Civil Case No. 1271 of 2014
  • Akamba Public Road Service Vehicle vs Samwel Nyamume Osere
    Civil Appeal No. 133 of 2012
Jurisdiction invoked
Original civil jurisdiction; res judicata under sections 7 and 8 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, "Margaret Matunda Tengia Jacob Mwakughu Tengia (Suing as Administratix and Administrators of the Estate of the Late Jervan Paul Tengia v County Government of Mombasa [2017] KEELC 3033 (KLR)", Case Analysis (2017). not stated in judgment (defendant's preliminary objection dated 28th January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3033/eng@2017-04-28

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