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ELCPartially AllowedELC No. 638 of 2017 (consolidated with ELC No. 814 of 2017, lead file; earlier suit HCCC 6323 of 1991 / ELC 623 of 1991 referenced)· [2018] KEELC 2515 (KLR)

Musa Onsando Omare v Yusuf Githinji Saleh & 2 others [2018] KEELC 2515 (KLR)

Environment and Land Court
2 July 2018
1,598 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a duplicate land case, ruling that a past dismissal for want of prosecution counts as a final judgment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (Ochieng J, delivered 2 July 2018) determined cross preliminary objections in consolidated suits ELC 814 of 2017 (lead file) and ELC 638 of 2017. The objection attacked the pleadings on grounds of limitation, res judicata, abuse of process and want of jurisdiction. The court framed four issues: whether the consolidated suits should be treated separately; whether ELC 638 of 2017 was res judicata; whether the court had jurisdiction; and whether the pleadings should be struck out. Relying on Order 11 rule 3(1)(h) of the Civil Procedure Rules, the Benson G. Mutahi criteria and the Supreme Court of India decision in Prem Lala Nahata, the court held that once consolidated the two suits became one cause or matter. However, res judicata under section 7 of the Civil Procedure Act could still be raised. The prior suit (Nairobi HCCC 6323 of 1991, also referred to as ELC 623 of 1991) raised the same issues over the same land and was dismissed for want of prosecution by Justice Mabeya in 2016 with no application to set aside; following Njue Ngai, such a dismissal stands as a final judgment. ELC 638 of 2017 was therefore struck out as res judicata. The application to strike out the Respondent's Defence in ELC 814 of 2017 was declined, that suit being an adverse possession claim the Respondents were entitled to defend, and it was directed to proceed to hearing on its merits with Order 11 compliance. No express costs order was recorded.

Key legal issues

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01

Whether consolidated suits remain separate for purposes of a preliminary objection

Holding

Once consolidated, the suits became one cause or matter, though res judicata could still be raised in respect of one of them

Reasoning

Relying on Order 11 rule 3(1)(h) of the Civil Procedure Rules and the criteria for consolidation in Benson G. Mutahi and the Prem Lala Nahata decision, the court held that although the suits initially sought different prayers (trespass/eviction versus adverse possession), once consolidated with the parties' acceptance they were united and treated as one cause. However, because an earlier suit had determined the issue of the suit land, res judicata had to be addressed.

p. 2
02

Whether ELC 638 of 2017 is res judicata in respect of HCCC 6323 of 1991 (ELC 623 of 1991)

Holding

ELC 638 of 2017 was res judicata and was struck out

Reasoning

Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties heard and finally decided by a competent court. The prior suit Nairobi HCCC 6323 of 1991 raised the same issues over the same subject matter and was dismissed for want of prosecution by Justice Mabeya in 2016. Following Njue Ngai, such a dismissal is a final decision unless set aside, and the Respondents had not applied to set it aside. The suit was therefore struck out.

p. 3
03

Whether the Defence in ELC 814 of 2017 should be struck out

Holding

The application to strike out the Defence was declined

Reasoning

The court held the Defence was properly on record and the Respondents were entitled to defend the adverse possession claim in ELC 814 of 2017. That suit was to proceed to hearing on its merits with Order 11 compliance.

p. 3

Legal principles established

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  • Once two suits are consolidated they are united and treated as one cause or matter, but this does not bar a party from raising res judicata, which ought to have been determined before consolidation
  • A dismissal for want of prosecution is as good as a final judgment unless set aside, and therefore can found a plea of res judicata

Court orders

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  1. 1.ELC Case No. 638 of 2017 struck out as res judicata
  2. 2.Application to strike out the Respondent's Defence in ELC 814 of 2017 declined
  3. 3.Parties urged to comply with Order 11 and set ELC 814 of 2017 down for hearing on its merits

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 11 rule 3(1)(h)

Cases cited (5)

  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
  • Prem Lala Nahata & Another v Chandi Prasad Sikaria
    (2007) 2, Supreme Court Cases 551
  • Stephen Wanganga Njoroge v Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd v Central Bank & Others
    CA No. 36 of 1996
  • Njue Ngai v Ephantus Njiru Ngai & another
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; Civil Procedure Act (res judicata) and Civil Procedure Rules (Order 11 rule 3(1)(h))

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, "Musa Onsando Omare v Yusuf Githinji Saleh & 2 others [2018] KEELC 2515 (KLR)", Case Analysis (2018). ELC No. 638 of 2017 (consolidated with ELC No. 814 of 2017, lead file; earlier suit HCCC 6323 of 1991 / ELC 623 of 1991 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2515/eng@2018-07-02

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