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ELCStruck OutNyahururu ELC Case (Plaint dated 12th November 2015, filed 16th November 2015)· [2018] KEELC 1400 (KLR)

Grace Njeri Kabiru v Stephen Wagiita Kiboi & 2 others [2018] KEELC 1400 (KLR)

Environment and Land Court
16 October 2018
MOM. C. Oundo
2,923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a wife's land claim, ruling spousal consent wasn't legally required for 2012 land transactions and the dispute was already decided.

What this practically means

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Executive summary

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The Plaintiff, wife of the 1st Defendant, sued over parcel Nyandarua/Ol'kalou Central/1502, alleging it was matrimonial property subdivided into parcels 5115, 5116 and 5117 for disposal. She had placed cautions on parcels 5115 and 5116, which were removed, and the land transferred to the 2nd Defendant. She sought declarations that the removal of her caution and the transfer were fraudulent and illegal, cancellation of the transfer, title and register entries, plus costs. The 2nd Defendant applied under Order 2 Rule 15(1)(a) and (d) of the Civil Procedure Rules to strike out the suit as disclosing no reasonable cause of action and as an abuse of process. He argued she pleaded no contribution or acquisition details establishing matrimonial property, attributed no fraud to any defendant, and that spousal consent was not required for the 2012 transactions under the then-applicable Registered Land Act. He further relied on a prior determination in Nakuru HCCC No. 283 of 2012, transferred as Nyahururu ELC No. 82 of 2017, declaring the 2nd Defendant the registered proprietor entitled to vacant possession. The Plaintiff and 1st Defendant opposed, contending striking out should be exercised sparingly and the suit curable by amendment. The court, applying DT Dobie v Muchina, held the suit plainly and obviously disclosed no cause of action since spousal consent was not required for 2012 transactions, and that the suit was res judicata and an abuse of process given the conclusive determination in ELC No. 82 of 2017. The application was allowed with costs to the 2nd Defendant.

Key legal issues

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01

Whether the plaint disclosed no reasonable cause of action warranting striking out

Holding

Yes. The plaint's foundation was lack of spousal consent, but the 2012 transactions were governed by the Registered Land Act which did not require spousal consent, so the claim was plainly and obviously bad

Reasoning

The court applied DT Dobie & Company Kenya Limited v Muchina, holding that striking out is reserved for plain and obvious cases. The Matrimonial Property Act, 2013 commenced on 16th January 2014, after the 2012 transactions. Following the authorities cited, spousal consent had no application to sales predating the Land Registration Act, 2012. The plaint therefore rested on a cause of action unknown to the applicable law and was incurable by amendment.

p. 3
02

Whether the suit was res judicata

Holding

Yes. The matters had been conclusively decided in Nyahururu ELC No. 82 of 2017 (formerly Nakuru HCCC No. 283 of 2012), which determined the suit lands belonged to the 2nd Defendant

Reasoning

The court applied the test in E.T v Attorney General, that a litigant cannot bring before the court in another way and in the form of a new cause of action a matter already resolved by a court of competent jurisdiction. It found identity of issues, sameness of parties despite additions, sameness of title and claim, concurrence of jurisdiction and finality in the previous decision, rendering the present suit res judicata and an abuse of process.

p. 4
03

Whether prior interim orders in Nakuru High Court No. 238 of 2012 made the suit an abuse of process

Holding

The 2nd Defendant argued the subsisting restraining orders rendered the suit abusive; the court founded its decision principally on res judicata and absence of cause of action

Reasoning

The 2nd Defendant submitted that interim orders of 9th November 2012 restraining the Plaintiff, the 1st Defendant and their family from interfering with the suit lands remained valid, and that the Plaintiff admitted possession in contravention of those orders. The court's determinative findings rested on the spousal consent point and res judicata rather than on the contempt argument.

p. 2

Legal principles established

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  • Jurisdiction to strike out a pleading must be exercised sparingly and only in plain and obvious cases
  • Spousal consent was not a requirement under the repealed Registered Land Act; it became a requirement only with the Land Registration Act, 2012 and the Matrimonial Property Act, 2013, and has no application to transactions predating those statutes
  • Parties cannot evade res judicata by adding other parties or cosmetic new causes of action to relitigate matters already resolved by a court of competent jurisdiction

Court orders

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  1. 1.The Plaintiff's suit dated 12th November 2015 and filed on 16th November 2015 is struck out
  2. 2.Costs of the suit awarded to the 2nd Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(a) & (d)
  • Civil Procedure Rules, 2010Order 51(1); Order 6 Rule 13(1)(a); Order 11
  • Matrimonial Property Act No. 49 of 2013Whole Act (commenced 16th January 2014)
  • Registered Land Act (Cap 300)Whole Act (repealed)
  • Land Registration Act, 2012Spousal consent provisions

Cases cited (9)

  • DT Dobie & Company Kenya Limited v Muchina
    (1980) KLR
  • Peninah Wambui Mugo v NMK and MMN & Another
    [2017] eKLR
  • Echaria v Echaria
    (2007) eKLR
  • Fredrick Chege Ndogo v Bernard Njoroge Mbugua & 2 Others
    [2016] eKLR; C.A No. 278 of 2006
  • Pettit v Pettit
  • Isaac Mwangi Kanyoro v Stephen Wagita Kiboi
    [2017] eKLR; Nyahururu ELC No. 82 of 2017 (formerly Nakuru HCCC No. 283 of 2012 / ELC 314/13)
  • E.T v Attorney General & Another
    (2012) eKLR
  • Omondi v National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu v Wambugu and another
    Nairobi HCCC No. 2340 of 1991 (unreported)
Jurisdiction invoked
Order 2 Rule 15(1)(a) & (d) and Section 51(1) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Grace Njeri Kabiru v Stephen Wagiita Kiboi & 2 others [2018] KEELC 1400 (KLR)", Case Analysis (2018). Nyahururu ELC Case (Plaint dated 12th November 2015, filed 16th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1400/eng@2018-10-16

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