Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 72 of 2017 (formerly Kerugoya ELC No. 93 of 2014)· [2018] KEELC 553 (KLR)

Milka Njeri Thuo & another v Pauline Wangari Gikera & another [2018] KEELC 553 (KLR)

Environment and Land Court
28 November 2018
3,330 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The court threw out a land claim because the same family dispute over the same parcel had already been fought and decided in earlier cases.

What this practically means

#

Executive summary

#
The Applicants (plaintiffs) sought leave to amend an Originating Summons claiming 2.2 acres each of LOC 2/KINYONA/94 from the Defendants under customary trust. The Defendants opposed, contending the claim was res judicata, having been litigated in a long chain of suits between the parties' predecessors: RMCC No. 182 of 1989 and RMCC No. 87 of 1989, consolidated as RMCC No. 30 of 1990 (Thika), SPMCC No. 37 of 1997 (Murang'a), proceedings before the Land Dispute Tribunals at Kigumo and on appeal, and High Court Civil Appeal No. 68A of 2009 (Nyeri), which set aside the LDT awards. The court framed two issues: whether the suit was res judicata and, if not, whether leave to amend should issue. Applying section 7 of the Civil Procedure Act and the principles in Henderson v Henderson and George W M Omondi v National Bank of Kenya, the court held that the current parties claim under the parties to RMCC No. 30 of 1990, the subject matter is identical (title to the suit land), the former court was competent, and trust or fraud could and should have been raised in that suit. The suit was found to be res judicata and dismissed. The court found no utility in determining the amendment question. Costs were awarded to the Applicants as recorded. The judgment contains internal inconsistencies regarding the date and outcome of RMCC No. 30 of 1990, which the court acknowledged as a dispute between contested decrees.

Key legal issues

#
01

Whether the suit claiming title to LOC 2/KINYONA/94 under customary trust is res judicata

Holding

The suit is res judicata. The parties claim under the previous parties to RMCC No. 30 of 1990, the subject matter is identical, the former court was competent, and the issue of title was or ought to have been raised in that suit.

Reasoning

Applying section 7 of the Civil Procedure Act, the court examined: (a) matters directly and substantially in issue; (b) identity of parties or their privies; (c) litigating under the same title; (d) competence of the former court; and (e) final decision. The parties in this suit are spouses and sons of the litigants in RMCC No. 30 of 1990, with the 1st Plaintiff substituted into that suit in 2008. The totality of the issues in all the suits is title to the suit land. Trust or fraud could have been raised as a defence or attack in the former suit; failure to do so cannot ground a fresh suit, since parties must bring their whole case at once and cannot litigate in instalments.

p. 4
02

Whether the Applicants should be granted leave to amend the Originating Summons

Holding

Not determined, as the finding of res judicata rendered the question academic.

Reasoning

The court had framed two issues: res judicata and, conditionally, leave to amend. Having found the suit res judicata, the court found no utility in determining the amendment question. The application for leave to amend therefore fell away with the dismissal of the suit.

p. 4

Legal principles established

#
  • A party must bring the whole of his case at once; matters which might and ought to have been raised in a former suit are deemed directly and substantially in issue, and the doctrine of res judicata bars litigation by instalments.
  • Parties claiming under previous litigants (privies) litigating under the same title are treated as the same parties for purposes of section 7 of the Civil Procedure Act.
  • The doctrine of res judicata is founded on public policy that there must be finality to litigation and no person should be vexed twice over the same matter.

Court orders

#
  1. 1.The suit is declared res judicata and dismissed
  2. 2.Costs awarded to the Applicants (as stated in the judgment, i.e. the plaintiffs)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - jurisdiction over title to land; suit transferred from Kerugoya ELC to Murang'a ELC

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Milka Njeri Thuo & another v Pauline Wangari Gikera & another [2018] KEELC 553 (KLR)", Case Analysis (2018). ELC No. 72 of 2017 (formerly Kerugoya ELC No. 93 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/553/eng@2018-11-28

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