Alex Tonny Gitonga Njeru & 19 others v County Government of Embu & 12 others [2017] KEELC 3263 (KLR)
The bottom line
#The Embu Land Court blocked any sale or transfer of disputed land, ruling that past court cases can't block people who weren't parties to them.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in light of prior litigation over the same land
The plea fails because the petitioners were not parties to the prior suits; res judicata binds only parties or those litigating under the same title.
The court traced the prior proceedings: Nyeri H.C.C.C No. 201 of 2000 (referred to arbitration, award adopted as judgment in 2003, with later orders by Ombwayo J in 2014) and Embu H.C.C.C No. 14 of 2004 (struck out). In all those cases the present petitioners were not parties. Applying Section 7 of the Civil Procedure Act, the court held the doctrine requires same parties litigating under the same title and a final determination by a competent court, none of which binds the petitioners here.
Whether prohibitory orders should issue over the suit land
Yes. The applicants are in occupation, the registered owner (County Government of Embu) filed no response, and the suit land must be preserved pending trial.
Under Section 68(1) of the Land Registration Act, an inhibition may issue where the applicant shows good grounds, risk of alienation, that the suit would be rendered nugatory, and absence of undue prejudice. The claim of occupation was unrebutted since the respondent filed no reply; the only serious objection (res judicata) had been dismissed; and no prejudice would be caused to the respondents or interested parties.
Legal principles established
#- Before a plea of res judicata can be upheld, the issues must have been directly and substantially in issue between the same parties or parties under whom they claim, and the former suit must have been heard and finally determined by a competent court; persons who were not parties to the former suit cannot be bound by it.
- An order of prohibition/inhibition operates like a temporary injunction, restraining the registered owner from registering dealings pending determination of the dispute.
Court orders
#- 1.A prohibitory order restraining all dealings with land parcel No. GATURI/NEMBURE/3072 and maintenance of the status quo on the said land pending the hearing and determination of the petition
- 2.Costs in the cause
- Jurisdiction invoked
- Section 68(1) of the Land Registration Act 2012 (prohibition/inhibition orders); Section 7 of the Civil Procedure Act (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Tonny Gitonga Njeru & 19 others v County Government of Embu & 12 others [2017] KEELC 3263 (KLR)", Case Analysis (2017). Notice of Motion dated 13th June 2016 (within an Originating Summons/Petition concerning land parcel No. GATURI/NEMBURE/3072). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3263/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.