Parliamentary Service Commission & another v Captain James Nyongesa Wafubwa [2018] KEELC 2133 (KLR)
The bottom line
#The Environment and Land Court stopped a former owner from evicting a property's current owner, ruling the case was not a repeat of earlier litigation.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata and an abuse of process
The suit is neither res judicata nor an abuse of the process of the court; the essential elements of Section 7 are absent
The parties in Nairobi HCCC No 385/2011 were Captain J N Wafubwa and Housing Finance Company of Kenya; the plaintiffs herein were never admitted as parties or bound by its determinations. Further, the cause of action here arose from threats issued in January and February 2017, long after the High Court judgment of 26/4/2012 and the Court of Appeal judgment of 28/3/2014. Different parties and different causes of action defeat the plea.
Whether the criteria for an interlocutory injunction were satisfied
The first and second limbs of Giella v Cassman Brown were satisfied and the injunction was granted in terms of prayers 4 and 5
It was uncontested that the 2nd plaintiff is the registered proprietor in possession and the 1st plaintiff holds a charge over the suit property. The defendant's own replying affidavit affirmed his intent to evict the 2nd plaintiff, confirming the threat to the right to quiet possession. Prior courts declined to annul the sale to John Wambua Kiilu, from whom the 2nd plaintiff purchased, so the title stands unrevoked.
Legal principles established
#- Res judicata under Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties or parties under whom they claim, litigating under the same title, in a competent court
- Parties who were not parties to the earlier suit or its determinations cannot be barred by res judicata
Court orders
#- 1.The defendant's Notice of Motion dated 3/5/2017 is dismissed; the plaintiffs shall have costs of the application
- 2.The plaintiffs' Notice of Motion dated 20/2/2017 is allowed in terms of prayers 4 and 5 of the application
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property LR Number 209/1048/85, South C, Nairobi
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Parliamentary Service Commission & another v Captain James Nyongesa Wafubwa [2018] KEELC 2133 (KLR)", Case Analysis (2018). Notice of Motion dated 20/2/2017 and Notice of Motion dated 3/5/2017 (Environmental and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2133/eng@2018-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.