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ELCStruck OutMalindi ELCC (not stated in judgment)· [2018] KEELC 3213 (KLR)

Jumwa Katana Mwaro & 2 others v Simon Karisa & 3 others [2018] KEELC 3213 (KLR)

Environment and Land Court
25 May 2018
JOJ.O. Olola
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A family lost their second land case in Kenya because they had already litigated the same plot dispute and lost, without appealing.

What this practically means

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Executive summary

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The three Plaintiffs, mother and two sons, sued for a permanent injunction, eviction of the 1st and 2nd Defendants from Plot No. 31 Kibarani Settlement Scheme, an order compelling the District Land Registrar Kilifi to issue them title documents, and costs. Together with the plaint they filed a Notice of Motion seeking temporary injunctions against all four Defendants. The 1st and 2nd Defendants filed a Notice of Preliminary Objection on 8th June 2017 contending that the suit was res judicata and a nullity, having been litigated in Kilifi SRMCC No. 656 of 2010 (Jumwa Katana Mwaro v Simon Karisa & One Faith Pentecostal Church), where the 1st Plaintiff's claim over the same plot was dismissed with costs on 9th February 2015 by L.N. Wasige, SPM, with no appeal preferred. The court examined Section 7 of the Civil Procedure Act and the Court of Appeal decision in John Florence Maritime Services Ltd, including the classic Henderson v Henderson formulation. It found the parties, subject matter and title identical, the earlier suit having been fully and finally determined on the merits; the mere addition of two co-plaintiffs and the Land Registrar and Surveyor did not avoid the doctrine. The suit and application were struck out with costs to the Defendants.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The suit and application were res judicata, the same dispute between the same parties litigating under the same title having been heard and finally decided by the Resident Magistrate's Court in Kilifi SRMCC No. 656 of 2010, and the suit was a gross abuse of court process.

Reasoning

The court compared the present plaint with the earlier Kilifi suit. The 1st Plaintiff had sued the 1st and 2nd Defendants over the same plot in near similar fashion; she and a stepson testified there and the 1st Defendant testified as DW3. The earlier claim was dismissed on the merits with no appeal. Adding two co-plaintiffs and the Land Registrar and Surveyor did not alter the identity of the matter in issue. The doctrine's rationale is finality in litigation and economical use of judicial resources.

p. 3

Legal principles established

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  • Res judicata bars not only points actually decided but every point which properly belonged to the subject of litigation and which parties exercising reasonable diligence might have brought forward.
  • The rationale of res judicata is the public interest that there should be an end to litigation and protection of parties from repetitive litigation.

Court orders

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  1. 1.The Motion and the suit both dated and filed on 21st April 2017 are struck out with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Jumwa Katana Mwaro v Simon Karisa & One Faith Pentecostal Church
    Kilifi SRMCC No. 656 of 2010
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; suit struck out under Section 7 of the Civil Procedure Act (res judicata)

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, "Jumwa Katana Mwaro & 2 others v Simon Karisa & 3 others [2018] KEELC 3213 (KLR)", Case Analysis (2018). Malindi ELCC (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3213/eng@2018-05-25

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