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ELCStruck OutEldoret CMCC No. 329 of 1998 matter; application dated 24.10.2017 (suit particulars not stated in judgment)· [2018] KEELC 838 (KLR)

Saulo Kandie v James Kwambai Cheruiyot [2018] KEELC 838 (KLR)

Environment and Land Court
24 October 2018
1,012 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 duplicate land dispute, ruling that legal arguments belong in an ongoing appeal, not a fresh suit.

What this practically means

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Executive summary

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Robert Kipchumba Cheruiyot, sued as administrator of the estate of the late James K. Cheruiyot, applied by notice dated 24.10.2017 for the striking out of a suit filed against him by Saulo Kandie, contending that the suit disclosed no reasonable cause of action and was scandalous, frivolous, vexatious and an abuse of the court process. The dispute stemmed from Eldoret CMCC No. 329 of 1998, in which judgment was delivered on 13.8.2001; an appeal to the High Court (Civil Appeal No. 3 of 2002) was dismissed, and the decision was further under challenge in Court of Appeal Civil Appeal No. 139 of 2012. Kandie opposed, stating he sought declarations that the lower court's decision was unenforceable after 12 years under the Limitation of Actions Act and that the magistrates' court lacked jurisdiction over trespass to land. Ombwayo J held that the suit was founded on a decision already subject to an undetermined appeal, in which the limitation and jurisdiction issues could be raised, and was therefore 'strange in law' with no cause of action. Applying Section 7 of the Civil Procedure Act and Explanation 4, the court held the suit res judicata, and further found it frivolous and an abuse of process as the declaration sought was a technical point of law for the appellate courts. The application dated 24.10.2017 was allowed, the suit struck out with costs, the parties directed to pursue the dispute in the Court of Appeal, and the application dated 9.11.2017 for stay of proceedings was disallowed.

Key legal issues

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01

Whether the suit discloses a reasonable cause of action

Holding

The suit discloses no reasonable cause of action; it is founded on a court decision with an existing appellate challenge mechanism

Reasoning

The court found the plaintiff sought declarations that the lower court's decision was unenforceable under the Limitation of Actions Act and that the magistrate's court lacked jurisdiction. Since that decision was already the subject of Civil Appeal No. 139 of 2012 pending before the Court of Appeal, the plaintiff could raise limitation and jurisdiction there. A suit attacking a decision with an appeal mechanism was therefore 'strange in law' and without cause of action.

p. 1
02

Whether the suit is res judicata

Holding

The suit is res judicata as the issues were or ought to have been raised in Eldoret CMCC No. 329 of 1998 and the appeal therefrom

Reasoning

Applying Section 7 of the Civil Procedure Act and its Explanation 4, the court held that the declaration sought was a technical point of law that should have been raised in the magistrates' court, High Court and Court of Appeal. The doctrine serves finality of litigation and prevents harassment of parties twice over the same cause.

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03

Whether the suit is frivolous, vexatious and an abuse of court process

Holding

The suit is frivolous and an abuse of the court process

Reasoning

The court agreed with the defendant that the suit was an abuse of process because the declaration sought was a technical point of law for the appellate courts, and frivolous because it raised no serious relief founded on tort, contract or a land claim.

p. 1

Legal principles established

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  • Res judicata bars a second suit on matters that could and ought to have been raised in a former suit between the same parties, including matters deemed in issue under Explanation 4 to Section 7 of the Civil Procedure Act
  • Where a judicial decision is being challenged on appeal, a declaratory suit questioning its enforceability discloses no cause of action and is an abuse of process; points of law should be raised in the appellate process

Court orders

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  1. 1.Application dated 24.10.2017 allowed and the suit struck out with costs
  2. 2.Parties to pursue the dispute in the Court of Appeal
  3. 3.Application dated 9.11.2017 to stay proceedings disallowed

Authorities

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Legislation

  • Civil Procedure ActSection 7 including Explanation 4
  • Limitation of Actions Actnot specified (invoked by plaintiff as basis for declaration)

Cases cited (1)

  • Ukay Estate Ltd & another vs Shah Hirji Manek Ltd & 2 others
    [2006] eKLR
Jurisdiction invoked
not stated in judgment (first-instance suit before the court; strike-out application under Civil Procedure Act/O.2 rules per submissions)

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, "Saulo Kandie v James Kwambai Cheruiyot [2018] KEELC 838 (KLR)", Case Analysis (2018). Eldoret CMCC No. 329 of 1998 matter; application dated 24.10.2017 (suit particulars not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/838/eng@2018-10-24

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