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ELCDismissedNotice of Motion dated 27th November 2014 (suit number not stated in judgment)· [2018] KEELC 2243 (KLR)

Elijah Ngunjiri Mwenenia v Moses Mwangi Kirichu & another [2018] KEELC 2243 (KLR)

Environment and Land Court
31 July 2018
MOM.C. Oundo
3,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The court dismissed a land dispute suit because the same boundary issue had already been finally decided, and you cannot re-litigate settled matters in Kenya.

What this practically means

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Executive summary

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The plaintiff, holding a Power of Attorney from the registered proprietors of Laikipia/Salama Muruku Block 1/828, moved the court by Notice of Motion dated 27th November 2014 seeking an interlocutory injunction restraining the defendants from entering, cultivating, developing or interfering with the suit land, alleging trespass following the death of their father, Kirichu Ndegwa, the registered proprietor of the adjoining Laikipia/Salama Muruku Block 1/193. The plaintiff relied on Giella v Cassman Brown, contending a prima facie case, irreparable loss and balance of convenience. The defendants opposed, arguing the plaintiff had not sued in his capacity as attorney contrary to Order 4 rule 4, that they lacked locus standi as they were not administrators of the deceased's estate, that the suit was res judicata given the earlier Tribunal award of 2006 adopted as a court judgment and confirmed in Nakuru Judicial Review No. 77 of 2010, and that the plaintiff was guilty of laches. The court found the capacity defect curable and the personal-capacity suit proper, but held that the boundary and acreage dispute had been conclusively determined in prior proceedings between the same parties litigating under the same title. The suit was therefore res judicata and an abuse of process, and the application and suit were dismissed with costs to the defendants.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata; the dispute over the same parcels of land was determined by the Land Disputes Tribunal, adopted as a court judgment and confirmed in judicial review, and no appeal was filed

Reasoning

Applying Section 7 of the Civil Procedure Act and the test in Bernard Mugo Ndegwa v James Nderitu Githae, the court found the parties were the same or litigating under the same title, the subject matter identical, the previous court competent, and the prior decisions final. The plaintiff could not relitigate the boundary/acreage dispute settled by the Tribunal award, which had led to the Respondent's father's title being amended from 12.55 Ha to 15.179 Ha.

p. 4
02

Non-compliance with Order 4 rule 4 (representative capacity)

Holding

The failure to plead that the plaintiff sued as attorney of the registered proprietors was not fatal and could be cured by amendment, guided by Article 159(2)(d) of the Constitution

Reasoning

The court held the contravention of Order 4 rule 4 was a curable procedural defect. The plaintiff could amend his pleadings, and the overriding objective under Article 159(2)(d) of the Constitution favoured substantive justice over technicalities.

p. 3
03

Locus standi of the Respondents as sons of the deceased registered owner

Holding

The suit properly lay against the Respondents in their personal capacity as perpetrators of the trespass after their father's death, not against the estate

Reasoning

Since the trespass alleged was committed by the Respondents personally after the demise of their father, they could be sued personally; the objection that they were not administrators of the estate lacked merit.

p. 3

Legal principles established

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  • Parties cannot evade the doctrine of res judicata by adding other parties or new causes of action in a subsequent suit
  • A court has no jurisdiction to overturn its own decision except through review, a procedure not pursued here

Court orders

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  1. 1.The application dated 27th November 2014 is dismissed
  2. 2.The suit is dismissed as res judicata and an abuse of the court process
  3. 3.Costs to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 4 Rule 4
  • Civil Procedure RulesOrder 7
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Giella vs. Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • George Orango Orago ve George Liewa Jagalo
    [1986] 3 All ER 772
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • E.T vs Attorney General & Another
    (2012) eKLR
  • Omondi Vs National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu vs Wambugu and another Nairobi HCCC No.2340 of 1991
    unreported
  • E.A. Industries v. Trufoods
    [1972] E.A. 420
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Act (Sections 1A, 1B, 3A) and Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules

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, "Elijah Ngunjiri Mwenenia v Moses Mwangi Kirichu & another [2018] KEELC 2243 (KLR)", Case Analysis (2018). Notice of Motion dated 27th November 2014 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2243/eng@2018-07-31

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