James Njau Wabururu (Suing on behalf of the Estate of Francis Mbururu Njau (Deceased) v Florence Wambui Kagia & 2 others [2018] KEELC 1005 (KLR)
The bottom line
#A Kenyan court refused to hear a second land case over the same property while an earlier case on it was still pending, staying the new suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata given HCCC No.751 of 2003
The plea of res judicata fails because HCCC No.751 of 2003 has not been finally determined; its exparte judgment of 19th June 2008 was set aside by consent on 10th February 2011 and the suit remains ongoing
The court found that consent orders of 10th February 2011 allowed the defendant in HCCC No.751 of 2003 to file a defence and counterclaim, showing the suit was still active. Section 7 of the Civil Procedure Act requires that the former suit have been heard and finally decided. Since there was no evidence of finalisation of HCCC No.751 of 2003, res judicata could not be sustained and the preliminary objection was declined.
Whether the suit should be stayed as subjudice under Section 6 of the Civil Procedure Act
The suit is stayed because the same property and substantially the same issues are in issue in the pending HCCC No.751 of 2003 at Milimani ELC
The court found the suit property Karai/Karai/1373 is directly and substantially in issue in the ongoing HCCC No.751 of 2003, in which the Plaintiff appears as legal representative of his deceased father's estate. The issues of fraudulent transfer and contempt could have been raised there by joining the Defendants. Staying the suit avoids the risk of different courts issuing conflicting orders over the same property.
Whether the injunctive and inhibitory orders sought should issue
Not decided; having stayed the suit, the court declined to determine the merits of the Notice of Motion
Because the entire suit was stayed pending the hearing and determination of HCCC No.751 of 2003, the interlocutory application became moot for the time being and no interim orders were granted or refused on their merits.
Legal principles established
#- A plea of res judicata can only be upheld where the former suit was heard and finally determined by a competent court between the same parties
- Where a matter in issue is directly and substantially in issue in a previously instituted suit pending between the same parties, the court must stay the later suit under Section 6 of the Civil Procedure Act
Court orders
#- 1.The Notice of Preliminary Objection that the suit is res judicata is declined/upheld in the sense pleaded by defendants is not upheld
- 2.The suit is stayed until HCCC No.751 of 2003, pending at Milimani Environment and Land Court, is heard and determined
- 3.The Notice of Motion dated 27th September 2017 is not decided on its merits
- Jurisdiction invoked
- Environment and Land Court jurisdiction over title to land (Title No. Karai/Karai/1373); Civil Procedure Act sections 6 and 7
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Njau Wabururu (Suing on behalf of the Estate of Francis Mbururu Njau (Deceased) v Florence Wambui Kagia & 2 others [2018] KEELC 1005 (KLR)", Case Analysis (2018). ELC Case (Notice of Motion dated 27th September 2017; suit dated 26th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1005/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.