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ELCStruck Outnot stated in the ruling (suit over land parcel No. NTHAWA/RIANDU/2229)· [2017] KEELC 3305 (KLR)

David Mwangi Manyeki v Tarsiana Nthua Nyaga [2017] KEELC 3305 (KLR)

Environment and Land Court (High Court)
3 March 2017
BOB.N. OLAO
1,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land claim because the same dispute had already been decided, confirming you cannot re-litigate a lost case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (B.N. Olao J) determines a preliminary objection dated 28th February 2012 raised by the defendant, alleging that the plaintiff's suit seeking eviction and a permanent injunction over land parcel No. NTHAWA/RIANDU/2229 is res judicata. The defendant pleaded that the same parties had litigated over the same land in Siakago Principal Magistrate's Court Civil Case No. 37 of 2005, in which judgment dismissing the plaintiff's identical claim for eviction or permanent injunction was delivered on 19th April 2006 by F.M. Omenta, Principal Magistrate, with no appeal preferred. The plaintiff's response was that the Siakago Principal Magistrate's Court had no jurisdiction, so its proceedings were a nullity and no appeal lay from them. The court applied Section 7 of the Civil Procedure Act and the doctrine in Henderson v Henderson, as adopted by the Court of Appeal in John Florence Maritime Services Ltd. It found that the same subject matter had been heard and finally decided between the same parties, that the plaintiff had offered no evidence that the Siakago court lacked pecuniary, geographical or remedial jurisdiction, and that the Environment and Land Court Act only commenced in August 2011, five years after the Siakago judgment. The preliminary objection was upheld, the suit was struck out, with costs to the defendant. Counsel Muyodi and Momanyi acted for the parties; only the defendant's submissions were filed, none from the plaintiff's side.

Key legal issues

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01

Whether the Siakago Case rendered the present suit res judicata under Section 7 of the Civil Procedure Act

Holding

The preliminary objection was upheld; the suit was struck out with costs

Reasoning

The parties had previously litigated over the same land in the Siakago Case, which was dismissed with costs on 19th April 2006 and against which no appeal was filed. The plaintiff's only response was a bare assertion that the magistrate's court lacked jurisdiction, unsupported by evidence on pecuniary, geographical or remedial competence. The ELC Act came into force in August 2011, five years after the Siakago judgment, so it could not invalidate that decision. The plea of res judicata was therefore sustained.

p. 3

Legal principles established

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  • For res judicata to apply, the matter must have been directly and substantially in issue between the same parties and heard and finally decided by a competent court
  • A party alleging lack of jurisdiction in the former court must adduce evidence; a bare statement is insufficient

Court orders

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  1. 1.The defendant's Preliminary Objection that the suit is res judicata is upheld
  2. 2.The suit is struck out
  3. 3.The plaintiff to pay the costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court Actnot specified (commencement in August 2011 noted)

Cases cited (2)

  • HENDERSON VS HENDERSON
    (1843) 67 E.R 313
  • JOHN FLORENCE MARITIME SERVICES LTD & ANOTHER VS CABINET SECRETARY FOR TRANSPORT AND INFRASTRUCTURE & OTHERS
    2015 e K.L.R
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court to determine a preliminary objection on res judicata

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Mwangi Manyeki v Tarsiana Nthua Nyaga [2017] KEELC 3305 (KLR)", Case Analysis (2017). not stated in the ruling (suit over land parcel No. NTHAWA/RIANDU/2229). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3305/eng@2017-03-03

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