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ELCStruck OutOriginating Summons (Murang'a), Preliminary Objection dated 16/4/2018· [2018] KEELC 1075 (KLR)

Jimna Minai Wangonya v Julius Macharia Mwangi [2018] KEELC 1075 (KLR)

Environment and Land Court (or High Court), Murang'a
31 October 2018
1,628 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Murang'a struck out a clan land dispute because the plaintiff lacked authority to sue for his family and an earlier abated suit barred him from filing afresh.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons on 3/4/2017 seeking declarations that the Respondent holds land parcel LOC.13/KARUNG'E/2347 (1.20 Ha) in trust for the Karoki family and an order for its equal subdivision between the Karoki and Nduiga clans. The Defendant raised a Preliminary Objection on 16/4/18 on two grounds: lack of locus standi to sue on behalf of the Karoki family without authority as required by Order 1 Rule 8 of the Civil Procedure Rules, and that the suit was barred by Order 24 Rule 7(1) because an earlier suit, Murang'a PMCC No. 31 of 2000, between the same parties over the same subject matter had abated on the death of the defendant. The parties elected to canvass the objection by written submissions. The Court framed two issues: the Applicant's locus standi and compliance with Order 24 Rule 7(1). On the first, it held that a representative suit requires notice to, and authority from, the persons represented; the Applicant's claim that all Karoki family members had died was unsupported by any affidavit evidence, and evidence cannot be tendered in submissions. On the second, the Court held the suit was not res judicata since the abated suit was never heard and determined, but Order 24 Rule 7(1), worded in mandatory terms, barred a fresh suit on the same cause of action regardless of the procedural mode adopted. The Preliminary Objection was upheld and the Originating Summons struck out with costs to the Respondent.

Key legal issues

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01

Locus standi in a representative suit under Order 1 Rule 8

Holding

The Applicant lacked locus standi as he neither gave notice to nor obtained written authority from the members of the Karoki family, and produced no evidence that the family members had all died such that there was nobody to notify

Reasoning

Order 1 Rule 8 requires a plaintiff suing in a representative capacity to give notice to all interested parties so that they are bound by the decree. The members to be represented must be ascertained. The Applicant's assertion that all family members had died was made only in submissions, with no affidavit evidence of who died and when, and in any event deceased members would have representatives. Evidence cannot be tendered in submissions.

p. 2
02

Whether the fresh suit is barred by Order 24 Rule 7(1) after abatement of Murang'a PMCC No. 31 of 2000

Holding

The cause of action, parties and subject matter were the same as in the abated suit; Order 24 Rule 7(1) is mandatory and bars a fresh suit on the same cause of action, whether by plaint or Originating Summons

Reasoning

The earlier PMCC No. 31 of 2000 sought a declaration of trusteeship over the same parcel for the Karoki clan; the defendant died and the suit abated, and an application to substitute was dismissed. Although abatement means the suit was not heard and determined and thus is not res judicata, Order 24 Rule 7(1) is worded in mandatory terms and prohibits a fresh suit on the same cause of action. The procedural mode (Originating Summons under Order 37) does not avoid the bar.

p. 3
03

Res judicata

Holding

The suit is not res judicata because the previous suit abated and was never heard and determined on the merits

Reasoning

Res judicata requires that the former suit was heard and determined. The earlier suit PMCC No. 31 of 2000 abated on the death of the defendant, and the substitution application was dismissed. Since the previous suit was not heard and determined, it cannot found a plea of res judicata, though abatement still triggers the bar in Order 24 Rule 7(1).

p. 3

Legal principles established

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  • A party instituting a representative suit under Order 1 Rule 8 must give notice to and obtain authority from the persons represented; the Court will not accept a claim of representation without evidential support
  • Where a suit abates, Order 24 Rule 7(1) mandatorily bars the filing of a fresh suit on the same cause of action, irrespective of whether the fresh suit is brought by plaint or by Originating Summons
  • A suit whose defendant died before full hearing cannot be res judicata because it was never heard and determined

Court orders

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  1. 1.Preliminary Objection upheld
  2. 2.Originating Summons struck out
  3. 3.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 8(1),(2),(3)
  • Civil Procedure RulesOrder 24 Rule 7(1)
  • Civil Procedure RulesOrder 37
  • Civil Procedure ActOrder 8(1) (as cited by Applicant)
Jurisdiction invoked
Original civil jurisdiction; suit by Originating Summons under the Civil Procedure Rules (Order 37); preliminary objection under the Civil Procedure Rules (Order 1 Rule 8 and Order 24 Rule 7)

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, "Jimna Minai Wangonya v Julius Macharia Mwangi [2018] KEELC 1075 (KLR)", Case Analysis (2018). Originating Summons (Murang'a), Preliminary Objection dated 16/4/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1075/eng@2018-10-31

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