Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 22/5/2019 in ELC suit (Murang'a)· [2019] KEELC 123 (KLR)

Miriam Waithira Githengi Mwicigi & another v John Baptista Murira Kweri [2019] KEELC 123 (KLR)

Environment and Land Court
11 December 2019
JKJ. G. Kemei
2,811 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Defendant/ Applicant filed a Notice of Motion on 22/5/2019 seeking dismissal of the Plaintiffs' suit as res judicata, setting aside of status quo orders issued on 11/3/19, and costs. The Plaintiffs, widow and son of Simon Githengi, claimed trust over, or alternatively adverse possession of, parcel LOC.16/KIARUTARA/43 against John Baptista Kweri. The Applicant argued that the trust claim had been litigated and dismissed in CMCC No 1146 of 2002 (Thika) and that the Plaintiffs could have raised trust or adverse possession in defence in ELC 75 of 2018 (formerly ELC 856 of 2012, Nairobi), a caution-removal suit determined in his favour. The Respondents opposed, contending the former suits involved different parties, subject matter and issues, and that CMCC 1146 was dismissed on a technicality for lack of grant, while the status quo orders were consented to. J. G. Kemei J framed three issues and, applying section 7 of the Civil Procedure Act and its Explanations, held that the parties claim under the same title, the subject matter is the same parcel, and the trust claim was heard and finally determined by a competent court; further, under Explanation 4, trust and adverse possession ought to have been raised in ELC 75 of 2018. Relying on Henderson v Henderson and Omondi v National Bank of Kenya, the court held parties cannot litigate in instalments. The suit was dismissed as res judicata with costs to the Applicant, and the status quo orders lapsed automatically.

Key legal issues

#
01

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

Holding

The suit is res judicata; the parties claim under the same title, the subject matter is the same parcel, and the claims of trust and adverse possession were litigated or ought to have been raised in the former suits.

Reasoning

The court examined the five elements of section 7: matter directly and substantially in issue, same parties or parties claiming under them, same title, competence of the former court, and final determination. Trust was determined in CMCC 1146 of 2002; the Plaintiffs could have raised trust or adverse possession in defence in ELC 75 of 2018 but did not. Parties are family members claiming under the previous litigants over the same parcel LOC16/KIARUTARA/43.

p. 3
02

Whether the status quo orders of 11/3/19 should stand

Holding

The orders lapsed automatically upon the finding that the suit is res judicata; no separate setting aside was necessary.

Reasoning

Since the suit itself was found to be res judicata and dismissed, the interim status quo orders issued on 11/3/19 could not survive the dismissal of the suit in which they were made.

p. 4

Legal principles established

#
  • Parties cannot litigate in instalments; all matters which might and ought to have been raised in a former suit are deemed to have been in issue

Court orders

#
  1. 1.The suit is dismissed as res judicata
  2. 2.Costs of the application and suit awarded to the Applicant/Defendant
  3. 3.The status quo orders issued on 11/3/19 lapse automatically upon the determination of the suit to be res judicata

Authorities

#

Legislation

  • Civil Procedure Actsection 7 including Explanations 1-6

Cases cited (4)

  • Subramanian Swamy v State of T.N
    AIR 2015 SC 460
  • Henderson v. Henderson
    (1843) 67 E.R. 313
  • George W M Omondi & another v National Bank of Kenya Ltd & 2 Others
    [2001] eKLR
  • Mwangi Njangu v Meshack Mbogo Wambugu
    (supra)
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application under section 7 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Miriam Waithira Githengi Mwicigi & another v John Baptista Murira Kweri [2019] KEELC 123 (KLR)", Case Analysis (2019). Notice of Motion dated 22/5/2019 in ELC suit (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/123/eng@2019-12-11

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