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ELCStruck OutNumber not stated in the judgment (plaint dated 15th November 2017)· [2018] KEELC 2210 (KLR)

Peter Kigo Waweru v Obadiah Mbogo [2018] KEELC 2210 (KLR)

Environment and Land Court
6 July 2018
DOD. O. Ohungo
1,545 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered owner of Nakuru Municipality Block 29/648 (Ronda), sued the defendant for trespass alleged to have occurred on 29th October 2017, seeking a declaration of ownership, a permanent injunction against the defendant and costs, together with an interlocutory injunction by Notice of Motion dated 15th November 2017. The defendant, who deponed that he is the son of Mbogo Kinyenyeri (deceased), responded that his late father had purchased a 0.0562-hectare portion of the suit property, had occupied it since 1994, and that a dispute over the transaction had already been litigated and decreed in Nakuru CMCC No. 1171 of 2011 between the plaintiff and the deceased, whose appeal was pending as Nakuru HCCA No. 19 of 2013. The plaintiff conceded the existence of those proceedings in the plaint. The defendant argued res judicata and asked for dismissal of the application and striking out of the suit. The court, holding that res judicata goes to its jurisdiction, compared the prayers in the subordinate court case with those in the present plaint, found them substantially identical, and noted that the counterclaim in the former suit had been allowed in favour of the deceased. Since the defendant claims under the deceased and the plaintiff raised no affidavit to contest that fact, the court held the suit res judicata and struck it out with costs to the defendant on 6th July 2018.

Key legal issues

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Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is res judicata; the issues between the parties were heard and finally decided in Nakuru CMCC No. 1171 of 2011, and the defendant claims under the deceased defendant in that suit

Reasoning

The plaintiff admitted prior proceedings in Nakuru CMCC No. 1171 of 2011 between himself and Mbogo Kinyiri, with an appeal pending. The defendant produced the pleadings and decree showing the same injunction prayers over the same property, and a counterclaim allowed in favour of the deceased. The plaintiff did not contest that the defendant is the deceased's son. The parties claim under the same title and the subordinate court was competent; therefore the ingredients of res judicata under Section 7 are met.

p. 2

Legal principles established

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  • A party cannot re-litigate, against a person claiming under a party to a former suit, issues that were heard and finally decided by a competent court
  • A slightly tweaked pleading does not escape res judicata where the substance was determined in a former suit

Court orders

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  1. 1.Suit struck out for being res judicata
  2. 2.Costs of the suit to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (7)

  • Mrao Ltd –v- First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Bernard Mugo Ndegwa –v- James Nderitu Githae & 2 others
    [2010] eKLR
  • George W. M. Omondi & another –vs- National Bank of Kenya Ltd & 2 others
    [2001] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Henderson v Henderson
    [1843] 67 ER 313
  • Karia & Another v the Attorney General and Others
    [2005] 1 EA 83
  • Kamunye & others v Pioneer General Assurance Society Ltd
    [1971] E.A. 263
Jurisdiction invoked
Section 7 of the Civil Procedure Act (res judicata); the court framed res judicata as going to its jurisdiction

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, "Peter Kigo Waweru v Obadiah Mbogo [2018] KEELC 2210 (KLR)", Case Analysis (2018). Number not stated in the judgment (plaint dated 15th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2210/eng@2018-07-06

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