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ELCStruck OutKerugoya (number not stated in judgment)· [2018] KEELC 2010 (KLR)

Monica Wambui Muchira & 3 others v Stella Gichugu Muchira & 2 others [2018] KEELC 2010 (KLR)

High Court of Kenya
20 July 2018
SMS.N. Mukunya
481 words in judgment
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The bottom line

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A Kenyan court threw out a family land dispute because the same fight had already been decided in earlier cases.

What this practically means

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Executive summary

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The plaintiffs, being wives and a daughter of the late Muchira Kagema, sued the defendants - a widow of the deceased and her two sons - seeking cancellation of titles KABARE/MUTIGE/765, 766 and 767, a declaration that the sub-division of the original parcel KABARE/MUTIGE/17 was null and void, reversion of the land to the original parcel and its sub-division into nine equal portions, plus costs. The defendants denied the claim and raised a preliminary objection that the suit was res judicata, having regard to two prior Kerugoya decisions: S.P.M.C.C. No. 414 of 2009, in which the first plaintiff's claim for determination of a trust and sub-division of the original parcel into nine portions was dismissed with a finding that Muchira Kagema was free to deal with his land as he wished, and C.M.C.C. No. 19 of 2016, in which the 2nd and 3rd defendants were declared lawful owners of parcel 766 after the 3rd plaintiff interfered with it. No appeals were preferred from either decision. The preliminary objection, canvassed by written submissions filed only by the defendants, invoked Section 7 of the Civil Procedure Act; counsel also cited Giella v Cassman Brown on injunctions and asked that the Notice of Motion be dismissed as vague. S.N. Mukunya J was convinced on the documents that the case was res judicata, upheld the objection, struck out the plaint together with the Notice filed on 21st September 2016, and awarded costs to the defendants. Judgment delivered on 20th July 2018.

Key legal issues

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01

Res judicata under Section 7 of the Civil Procedure Act

Holding

The issues raised in this suit were previously litigated in Kerugoya S.P.M.C.C. No. 414 of 2009 and Kerugoya C.M.C.C. No. 19 of 2016, in which no appeals were preferred; the suit is therefore res judicata and the plaint is struck out

Reasoning

The defendants relied on Section 7 of the Civil Procedure Act, pointing to two prior suits over the same subject matter - the 2009 suit seeking determination of a trust and sub-division of KABARE/MUTIGE/17 into 9 portions, which was dismissed with a finding that Muchira Kagema could deal with his land as he wished, and the 2016 suit declaring the 2nd and 3rd defendants owners of parcel 766. No appeals were filed against either decision. The court was convinced by the documents that the claim was res judicata.

p. 1

Legal principles established

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  • A suit whose subject matter has previously been litigated and determined is res judicata under Section 7 of the Civil Procedure Act and is liable to be struck out on preliminary objection

Court orders

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  1. 1.The Preliminary Objection on res judicata is upheld as merited
  2. 2.The plaint filed herein is struck out together with the Notice filed on 21st September 2016
  3. 3.Costs of the suit to the defendants
Jurisdiction invoked
Original civil jurisdiction (suit concerning title to land; no specific provision cited)

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, "Monica Wambui Muchira & 3 others v Stella Gichugu Muchira & 2 others [2018] KEELC 2010 (KLR)", Case Analysis (2018). Kerugoya (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2010/eng@2018-07-20

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