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ELCStruck OutNakuru HCCC (as filed 1 March 2010) - Nakuru Environment and Land Court suit· [2018] KEELC 2325 (KLR)

Lucia Waithera Maina v James Gakure Kamau & another [2018] KEELC 2325 (KLR)

Environment and Land Court
3 July 2018
MSMunyao Sila
2,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court struck out a land dispute suit because it re-litigated issues already decided, showing Kenyan courts won't tolerate repeated filings on the same matter.

What this practically means

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Executive summary

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The defendants applied by notice dated 8 February 2018, under Section 7 of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules, 2010, to strike out the plaintiff's suit as res judicata. The plaintiff claimed that her late husband purchased shares in Deffo Company entitling him to Plot Bahati/Kabatini Block 1/1494, and that the 1st defendant procured title to the land, later transferring it to the 2nd defendant. She sought a declaration that the 1st defendant held the land in trust for her husband's estate, cancellation of the 2nd defendant's title, transfer and a permanent injunction. The court traced prior litigation: a Bahati Land Disputes Tribunal case (No. 25 of 2005) in which the 1st defendant successfully claimed the land, the award adopted as judgment in Land Dispute Case No. 27 of 2007 on 21 May 2007 with no appeal; and two High Court suits (Nakuru HCCC No. 116 of 2008 and No. 49 of 2010) raising substantially the same trust claim, both struck out by Ouko J on 26 February 2010 on the ground that the plaintiff's recourse was to appeal the Tribunal award or quash it by judicial review. Munyao Sila J held that he could not sit on appeal over that decision; the issue whether the plaintiff could bring a trust claim before the High Court had already been determined, and refiling the suit was an abuse of process. The application was allowed, the suit struck out, and the defendants awarded the costs of the suit.

Key legal issues

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01

Res judicata and abuse of process arising from prior litigation over the suit land

Holding

The suit is res judicata and an abuse of the process of court; the issue of whether the plaintiff could present a trust claim before the High Court was already decided by Ouko J, who struck out HCCC No. 116 of 2008 and HCCC No. 49 of 2010, holding the plaintiff should have appealed or sought judicial review of the Tribunal award.

Reasoning

The Land Disputes Tribunal adjudicated the dispute over Bahati/Kabatini Block 1/1494 in favour of the 1st defendant; its award was adopted as judgment on 21 May 2007 and no appeal or judicial review followed. The plaintiff then filed two High Court suits raising substantially the same trust claim, both struck out by Ouko J, who held the only routes open were the appellate process or certiorari. This court cannot sit on appeal over that decision; entertaining the new suit would circumvent it and embarrass the administration of justice. The suit is therefore vexatious and liable to summary striking out.

p. 3

Legal principles established

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  • A pleading which introduces a matter already litigated is vexatious and an abuse of the process of the court and may be struck out summarily.
  • A party may not file a fresh suit raising the very issue already determined in a prior suit; the remedy is appeal from the earlier decision, and entertaining the new suit would amount to sitting on appeal without jurisdiction.

Court orders

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  1. 1.The defendants' application dated 8 February 2018 is allowed and the suit is struck out as being an abuse of the process of court
  2. 2.The defendants shall have the costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(d)
  • Land Disputes Tribunal Act
Jurisdiction invoked
Section 7 of the Civil Procedure Act, Cap 21, and Order 2 Rule 15(1)(d) 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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Cite this brief

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Cite this brief

Caselaw, "Lucia Waithera Maina v James Gakure Kamau & another [2018] KEELC 2325 (KLR)", Case Analysis (2018). Nakuru HCCC (as filed 1 March 2010) - Nakuru Environment and Land Court suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2325/eng@2018-07-03

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