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ELCStruck OutApplication dated 22nd April 2017· [2018] KEELC 115 (KLR)

Julius Njuguna Nduati v James Macharia Njuguna & 5 others [2018] KEELC 115 (KLR)

Environment and Land Court
22 November 2018
MOM. A. Odeny
947 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a land lawsuit filed after decades of prior cases, ruling that courts won't allow endless relitigation of 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 Eldoret (M. A. Odeny J) determined a Notice of Application dated 22nd April 2017 seeking striking out of the plaintiff's plaint dated 28th April 2017 on the ground of res judicata under Section 7 of the Civil Procedure Act. The defendants traced a long chronology of prior litigation concerning the suit land (plot 3A within Githia Farm, formerly LR 838/3): Eldoret HCCC No. 93 of 1977 in which a consent dated 23/11/84 directed subdivision and registration and awarded the plaintiff 0.42 hectares; HCC Misc. Appl. No. 3 of 1984 (Githia Farm vs Julius Nduati) before VV Patel J recording a consent declaring the plaintiff a shareholder entitled to survey his portion; a dismissed application for review (14/10/95); a dismissed appeal being Nakuru Civil Appeal No. 134 of 1985 before a three-judge bench; SPMCC No. 490 of 2004 dismissed on 21/9/10; and Kitale HC E&L Appeal No. 24 of 2010, also dismissed. The plaintiff opposed, arguing the issues differed and that failure to annex full pleadings was fatal; the Attorney General supported striking out. The court held the suit was res judicata and an abuse of process, noting that a party should not litigate by installments, that recorded consents had not been set aside, and warning that the plaintiff risked being declared a vexatious litigant by the Attorney General. The plaint was struck out/dismissed with costs on 22nd November 2018.

Key legal issues

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01

Whether the plaintiff's suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is res judicata: the same subject matter (plot 3A within Githia Farm, formerly LR 838/3) and the same parties were previously in issue, and recorded consents remain un set aside.

Reasoning

The court traced a chronology of prior litigation in Eldoret, Kitale and Nakuru, including Eldoret HCCC No. 93 of 1977, HCC Misc. Appl. No. 3 of 1984 before VV Patel J, a dismissed appeal (Nakuru Civil Appeal No. 134 of 1985), SPMCC No. 490 of 2004 and Kitale HC E&L Appeal No. 24 of 2010. Recorded consents had not been set aside. Continued litigation was held to be an abuse of court process warranting striking out.

p. 2

Legal principles established

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  • A party should not be allowed to litigate by installments or piecemeal.
  • Courts strike out cases sparingly but should act decisively where abuse of process is glaring.

Court orders

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  1. 1.The plaintiff's suit is declared res judicata
  2. 2.The plaintiff's plaint is struck out
  3. 3.Costs awarded to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (5)

  • Eldoret HCCC No. 93 of 1977 - Josephat Gitau & 29 Others
    HCCC No. 93 of 1977
  • Githia Farm vs Julius Nduati (HCC Misc. Appl. No. 3 of 1984)
    HCC Misc. Appl. No. 3 of 1984
  • Nakuru Civil Appeal No. 134 of 1985
    Civil Appeal No. 134 of 1985
  • SPMCC No. 490 of 2004 (against administrator of Zakaria Mwangi Kambo - Lucy Nyokabi Mwangi)
    SPMCC No. 490 of 2004
  • Kitale HC E&L Appeal No. 24 of 2010
    E&L Appeal No. 24 of 2010
Jurisdiction invoked
Section 7 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, "Julius Njuguna Nduati v James Macharia Njuguna & 5 others [2018] KEELC 115 (KLR)", Case Analysis (2018). Application dated 22nd April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/115/eng@2018-11-22

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