Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutMombasa ELC Suit (Plaint dated 13th September 2017)· [2018] KEELC 2490 (KLR)

Leonard Mashaka Msanga & another v Ronald Mzame Mwakio & 6 others [2018] KEELC 2490 (KLR)

Environment and Land Court
10 July 2018
CYC. Yano
1,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out an entire land suit because the same parties had already litigated the same dispute in Wundanyi, and awarded costs to the defendants.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (C. Yano, J) determined two preliminary objections against the Plaintiffs' Notice of Motion dated 13th September 2017 seeking a temporary injunction, and by extension the entire Suit. The 5th and 6th Defendants objected that the application was res judicata, a similar application having been filed and determined in Wundanyi SRMCC No.10 of 2013, while the 7th Defendant raised grounds including want of jurisdiction under section 30(1) of the Land Adjudication Act, res judicata, and lack of locus standi. The Suit sought a declaration that the compulsory acquisition of Plot No.1329 (arising from Plot No.214) had lapsed for non-payment of compensation, an order for registration of the Plaintiffs as owners, and permanent injunctions against the Defendants. Applying section 7 of the Civil Procedure Act and section 28 of the Environment and Land Court Act, and the ingredients of res judicata set out in John Florence Maritime Services, the court found the parties and the subject matter (Plot No.246 and Plot No.1329) identical to the earlier Wundanyi suit, whose issues had been determined after a hearing. The court upheld the preliminary objections, held the application and the entire Suit to be an abuse of the court process, struck them out, and awarded costs to the Defendants. The Defendants' pleaded defences and the alternative grounds of the 7th Defendant's objection were not separately determined.

Key legal issues

#
01

Res judicata

Holding

The Suit and Application are res judicata, the same parties having litigated the same issues (Plot No.246 and Plot No.1329) in Wundanyi SRMCC No.10 of 2013

Reasoning

The court applied section 7 of the Civil Procedure Act and section 28 of the Environment and Land Court Act, and the three ingredients in John Florence Maritime Services: same issue directly and substantially in dispute, same parties or parties under whom they claim, and a competent court that determined the matter finally. The parties were the same save for added defendants, and the subject matter and issues were the same as those determined in the earlier suit.

p. 3
02

Abuse of court process

Holding

The Notice of Motion and the entire Suit constitute an abuse of the court process

Reasoning

Having found the Suit barred by res judicata, the court concluded that continuing the litigation over matters already finally determined amounted to an abuse of process, warranting striking out in limine with costs to the Defendants.

p. 3

Legal principles established

#
  • A suit and application between the same parties over the same subject matter already finally determined is barred by res judicata under section 7 of the Civil Procedure Act and section 28 of the Environment and Land Court Act
  • Res judicata goes to jurisdiction and, if successfully raised, results in the suit being struck out

Court orders

#
  1. 1.The Preliminary Objections dated 17th October 2017 and 24th October 2017 are upheld
  2. 2.The Notice of Motion dated 13th September 2017 and the entire Suit are struck out as an abuse of the court process
  3. 3.Costs to the Defendants

Authorities

#

Legislation

  • Civil Procedure Actsection 7
  • Environment and Land Court Actsection 28
  • Land Adjudication Actsection 30(1)

Cases cited (4)

  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Karia & Another v Attorney General and others
    (2005) 1 EA 83
  • Kamunye & Others v Pioneer General Assurance Society Ltd
    (1971) EA 263
  • Amos Mwakughu Mwamburi & 2 Others v Ronald Mzame Mwakio & 4 others
    Wundanyi SRMCC No.10 of 2013
Jurisdiction invoked
Environment and Land Court Act, section 28 (bar on re-litigating matters previously determined); Civil Procedure Act, section 7

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Leonard Mashaka Msanga & another v Ronald Mzame Mwakio & 6 others [2018] KEELC 2490 (KLR)", Case Analysis (2018). Mombasa ELC Suit (Plaint dated 13th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2490/eng@2018-07-10

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