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ELCStruck OutNot stated in the judgment (Environment and Land Court suit, Ngong)· [2018] KEELC 2849 (KLR)

Eric Peter Wanjau v Margaret Kasera & 6 others [2018] KEELC 2849 (KLR)

Environment and Land Court of Kenya
21 June 2018
2,362 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land suit as res judicata, confirming courts will not allow the same dispute to be relitigated with cosmetic changes.

What this practically means

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Executive summary

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Two Notice of Motion applications dated 11th September 2017 and 13th December 2017 by the 1st, 2nd, 3rd, 4th and 6th Defendants and the Interested Party sought striking out of the plaintiff's suit as res judicata, under Sections 1A, 1B, 3A and 7 of the Civil Procedure Act. The dispute concerned land parcel NGONG/NGONG/15933, initially owned by George Montet (deceased), father of the Interested Party. In Nairobi HCCC No. 3257 of 1978, an arbitration award was adopted as judgment in favour of the plaintiff, but that judgment was set aside on 22nd August 2000 in proceedings before Justice Effie Owuor, and the plaintiff did not appeal or review. Montet then subdivided and sold the land to the Defendants. The court identified a single issue: whether the suit was res judicata. It found it undisputed that the same land had been the subject of the former suit and that the issues had been determined; the plaintiff had merely recast the same cause of action against purchasers who claim under Montet. Relying on Section 7 CPA and authorities including Uhuru Highway Development Ltd v Central Bank, Omondi v National Bank of Kenya and Kuloba J's observations in Njangu v Wambugu, the court held the suit res judicata, an abuse of process, and struck it out with costs to the Defendants, while directing the Interested Party, who voluntarily joined the suit, to bear her own costs.

Key legal issues

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01

Whether the instant suit is res judicata to Nairobi HCCC No. 3257 of 1978

Holding

Yes - the same suit land and substantially the same cause of action were determined in the former suit, whose judgment as set aside on appeal vested title in George Montet; purchasers from him claim under the same title

Reasoning

The court found it undisputed that the suit land NGONG/NGONG/15933 was the subject of HCCC No. 3257 of 1978, that the judgment adopting the arbitration award was set aside by the Court of Appeal, and that the Plaintiff never sought review. The Defendants, as purchasers for value from George Montet, claim under him, so suing them is the same cause of action cosmetically recast; the Plaintiff is barred by Section 7 of the Civil Procedure Act.

p. 3

Legal principles established

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  • Parties cannot evade res judicata by adding parties or reframing the same cause of action; litigation must come to an end

Court orders

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  1. 1.The two Notice of Motion applications dated 11th September, 2017 and 13th December, 2017 are allowed as prayed
  2. 2.The suit is struck out
  3. 3.Costs to the Defendants
  4. 4.The Interested Party to bear her own costs

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7

Cases cited (5)

  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Nancy Mwangi T/A Worthlin Marketers V Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 Others
    (2014) 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)
Jurisdiction invoked
Sections 1A, 1B, 3A and 7 of the Civil Procedure Act

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, "Eric Peter Wanjau v Margaret Kasera & 6 others [2018] KEELC 2849 (KLR)", Case Analysis (2018). Not stated in the judgment (Environment and Land Court suit, Ngong). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2849/eng@2018-06-21

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