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 OutEmbu ELC Civil Suit (plaint dated 7th February 2018)· [2018] KEELC 2701 (KLR)

Mugo Njagi v Mbugi Mathenge [2018] KEELC 2701 (KLR)

Environment and Land Court
14 June 2018
YAY. M. Angima
2,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Embu struck out a landowner's fresh suit because the same boundary dispute had already been finally decided, awarding costs against him.

What this practically means

#

Executive summary

#
The Plaintiff, registered proprietor of Ngandori/Kirigi/2077, sued the Defendant, registered proprietor of the adjacent parcel 2078, seeking to set aside the decision of the defunct Embu Land Disputes Tribunal, an order for boundary determination by the Land Registrar and District Surveyor, and an order compelling the Defendant to vacate and demolish a perimeter wall. The parties had each occupied the other's parcel since the 1963 demarcation. The Tribunal's 2007 award directed each party to retain the parcels they occupied, and it was adopted as a judgment of the Magistrate's Court. The Plaintiff's application to set aside that adoption was dismissed in 2011, and Embu ELC Civil Appeal No. 20 of 2014 was dismissed on 28th September 2017. Together with the plaint the Plaintiff sought an interlocutory injunction under Order 40; the Defendant opposed, contending the suit was res judicata. The court framed two issues: res judicata and the Giella v Cassman Brown injunction principles. Applying section 7 of the Civil Procedure Act and authorities including Kamunye v Pioneer Assurance and E.T. v Attorney General, Angima J held that the fresh suit sought the same object as the previously adjudicated dispute; the Tribunal award, once adopted, became a decree of the competent Magistrate's Court, and the Plaintiff's remedies lay in appeal or judicial review, both of which had been exhausted. The suit and the notice of motion were struck out as res judicata, with the injunction application not considered, and the Plaintiff ordered to bear the costs of the entire suit. Ruling delivered at Embu on 14th June 2018.

Key legal issues

#
01

Res judicata under section 7 of the Civil Procedure Act

Holding

The suit is res judicata; the same issue (parties exchanging parcels) was decided by the Tribunal's award adopted as judgment of the Magistrate's Court, a court of competent jurisdiction, and pursued through review and appeal

Reasoning

The Plaintiff had litigated for over eleven years to be settled on parcel 2077, a claim rejected by the Tribunal in 2007 and adopted as a judgment of the Magistrate's Court. His application to set aside was dismissed, and his appeal (Embu ELC Appeal No. 20 of 2014) was dismissed on 28th September 2017 with no further appeal. Filing a fresh suit to achieve the same interchange of parcels is an attempt to re-litigate a matter already finally decided between the same parties by a competent court, attracting section 7.

p. 3
02

Interlocutory injunction

Holding

Not considered because the suit is res judicata

Reasoning

Having found the entire suit barred by res judicata, the court held there was no need to evaluate whether the Giella v Cassman Brown principles for an interlocutory injunction were satisfied; the application fell with the suit.

p. 3

Legal principles established

#
  • A Tribunal award, once adopted as a judgment of the Magistrate's Court, becomes a decree of that court and challenges are restricted to appeal or judicial review
  • A litigant cannot evade res judicata by filing a fresh suit to achieve the same object after failing in setting-aside applications and appeal

Court orders

#
  1. 1.The Plaintiff's suit is struck out for being res judicata
  2. 2.The Plaintiff's notice of motion dated 7th February 2018 stands struck out as well
  3. 3.The Plaintiff shall bear the costs of the entire suit

Authorities

#

Legislation

  • Civil Procedure Act (Cap 21)section 7
  • Civil Procedure RulesOrder 40

Cases cited (8)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Njue Ngai Vs Ephantus Njiru Ngai & Another
    (2016) eKLR
  • Likay Estate Ltd & Another Vs Shah Hiri Monak & 2 Others
    (2006) eKLR
  • Kamunye & Others Vs The Pioneer Assurance Society Ltd
    [1971] EA 263
  • 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
  • Florence Nyaboke Machani Vs Mogere Amosi Ombui & Others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; ruling on interlocutory application under Order 40 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mugo Njagi v Mbugi Mathenge [2018] KEELC 2701 (KLR)", Case Analysis (2018). Embu ELC Civil Suit (plaint dated 7th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2701/eng@2018-06-14

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