Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck Out· [2018] KEELC 4342 (KLR)

David Mugo Murimi v Sospeter Murimi Karitu [2018] KEELC 4342 (KLR)

Environment and Land Court
23 February 2018
1,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner's attempt to relaunch an old land dispute failed because the court ruled the issues had already been decided in a previous case.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kerugoya (Olao J, 23rd February 2018) dealt with a Notice of Motion dated 23rd May 2017 by David Mugo Murimi (plaintiff) seeking reinstatement of his suit against Sospeter Murimi Karitu (defendant), which had been dismissed for want of prosecution on 11th November 2015. The plaintiff alleged that the defendant was illegally occupying land parcel No. Mwerua/Kanyokora/13 and claimed Ksh. 400,000 per month in loss of earnings for four years plus compensation for illegal occupation since 1986. The defendant had pleaded a preliminary objection that the suit was res judicata, being barred by the judgment of Makhandia J in Nyeri High Court Civil Appeal No. 472 of 1986 delivered on 18th June 2009, in which the defendant (as plaintiff there) had obtained judgment for refund of the purchase price of Ksh. 3,500, the value of tea and arrow roots (Ksh. 3,680,000) and trees (Ksh. 1,111,864.80) on the same land. The court first resolved that parcel No. Mwerua/Kanyokora/131 in the Nyeri Case and parcel No. Mwerua/Kanyokora/13 in this suit were one and the same parcel, relying on the parties' statements in the absence of the title documents. Applying Section 7 of the Civil Procedure Act, the four ingredients of res judicata (drawn from Karia v Attorney General and John Florence Maritime Services), Henderson v Henderson and Explanation 4 to Section 7, the court held that the present claims founded on the same subject matter could and ought to have been raised in the Nyeri Case. The suit was therefore struck out with costs to the defendant, rendering the reinstatement application unnecessary.

Key legal issues

#
01

Identity of the suit land in the two cases

Holding

Parcel No. Mwerua/Kanyokora/131 (Nyeri Case) and parcel No. Mwerua/Kanyokora/13 (this suit) are one and the same parcel of land

Reasoning

The document of title, the best evidence, was not produced, so the court relied on the parties' own statements. Both parties' statements linked the current dispute to the judgment delivered on 18th June 2009 in Nyeri HCCC No. 472 of 1986 concerning the same land, demonstrating a single parcel despite the differing designations.

p. 2
02

Ingredients of res judicata and their application

Holding

The suit was res judicata because the parties, subject matter and competent, final determination in the Nyeri Case were all established, and the present claims could have been raised there

Reasoning

The court set out four requirements: same issue directly and substantially in issue; same parties or those claiming under them; former suit heard and finally decided; and a competent court. All were satisfied: the same parties litigated over the same land, which was finally determined by a competent court. The loss-of-earnings and occupation claims were founded on the same subject matter and ought to have been pleaded in the Nyeri Case, per Henderson v Henderson and Explanation 4 to Section 7.

p. 3
03

Sequencing: res judicata before the reinstatement application

Holding

The court had first to determine res judicata, since if the suit was barred there was no need to consider reinstatement

Reasoning

The plaintiff's suit had been dismissed for want of prosecution on 11th November 2015 and he sought reinstatement by a Notice of Motion dated 23rd May 2017. The court held that the threshold jurisdictional bar of res judicata had to be resolved first, because if it applied, considering the motion would be an academic exercise.

p. 2

Legal principles established

#
  • The establishment of the Environment and Land Court was not meant to be a forum for resuscitating land disputes that had long died and were buried
  • A claim founded on the same subject matter which could and ought to have been litigated in a former suit between the same parties is barred by res judicata under Explanation 4 to Section 7 of the Civil Procedure Act

Court orders

#
  1. 1.The plaintiff's suit was struck out
  2. 2.Costs of the suit were awarded to the defendant

Authorities

#

Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 7, Explanation No. 4

Cases cited (3)

  • Karia & Another v Attorney General
    2005 1 E.A 83
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure
    E.A Civil Appeal No. 42 of 2014 (Malindi)
  • Henderson v Henderson
    1843 67 E.R 313
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (statutory land dispute jurisdiction); the court also invoked Section 7 of the Civil Procedure Act on res judicata

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Mugo Murimi v Sospeter Murimi Karitu [2018] KEELC 4342 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4342/eng@2018-02-23

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