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ELCStruck OutNot stated in the judgment (arising from Nakuru CMCC No. 2396 of 2006 and Nakuru CMCC No. 595 of 2009)· [2019] KEELC 502 (KLR)

Gilbert Kabage Karianjahi (Suing for and on behalf of Kaguku Karianjahi) v Richard Maina Mutungi [2019] KEELC 502 (KLR)

Environment and Land Court
4 December 2019
DOD. O. Ohungo
2,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a landowner's third attempt to reclaim the same plot, ruling that earlier dismissals count as final judgments that block new suits.

What this practically means

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Executive summary

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By a Notice of Motion dated 16th October 2018, the defendant sought dismissal or striking out of the plaintiff's suit on the ground that it was res judicata. The defendant relied on two previous suits between the same parties: Nakuru CMCC No. 2396 of 2006, dismissed for want of prosecution on 11th November 2008 under the then Order IXB Rules 4 and 7(2) of the Civil Procedure Rules 1998, and Nakuru CMCC No. 595 of 2009, struck out as res judicata on the strength of that earlier dismissal. Neither decision was appealed. The plaintiff conceded the existence of these cases but argued that res judicata did not apply because none of the prior matters was heard and determined on the merits. In all three matters the plaintiff claimed ownership of Plot No. 67 Marigu 'B' Ol Rongai and sought the defendant's eviction and mesne profits. Relying on Section 7 of the Civil Procedure Act and the Court of Appeal's decisions in John Florence Maritime Services and Njue Ngai v Ephantus Njiru Ngai (which followed Peter Ngome v Plantex Company Limited), the court held that a dismissal for want of prosecution operates as a judgment which, unless set aside, finally concludes the matter and determines the issues raised. The dismissal of Nakuru CMCC No. 2396 of 2006 was therefore a determination on the merits, and the striking out of Nakuru CMCC No. 595 of 2009 also concluded that case with finality. The issues in the present suit were identical to those in the two previous suits and were accordingly res judicata. The court struck out the suit with costs to the defendant.

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 is res judicata; the same issues of ownership and vacant possession were finally determined in the two previous suits between the same parties

Reasoning

The court set out the Section 7 ingredients: a former suit between the same parties litigating under the same title, before a competent court, heard and finally decided. The plaintiff's two prior suits raised identical ownership and possession claims. Nakuru CMCC No. 2396 of 2006 was dismissed for want of prosecution and never set aside, and Nakuru CMCC No. 595 of 2009 was struck out as res judicata with no appeal against that decision.

p. 3
02

Whether dismissal under Order IXB Rule 4 for want of prosecution amounts to a determination on the merits

Holding

Yes - such a dismissal operates as a judgment which, unless set aside, finally concludes the matter and supports a plea of res judicata

Reasoning

Relying on Njue Ngai v Ephantus Njiru Ngai and the earlier Peter Ngome v Plantex Company Limited, the court held that a dismissal is a judicial determination - a judgment for the defendant against the plaintiff. Order IXB Rule 7(2) barred a fresh suit on the same cause of action, and only an application under Rule 8 to set aside the dismissal could revive the matter. No such setting aside occurred here.

p. 2

Legal principles established

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  • A dismissal of a suit for non-attendance or want of prosecution operates as a judgment which, unless set aside, finally concludes the matter and determines the issues raised therein

Court orders

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  1. 1.The suit is struck out with costs to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules 1998Order IXB Rules 4, 7(1), 7(2), 8 (and Rule 3 of Order IXB as referenced)

Cases cited (9)

  • Henry Wanyama Khaemba v Standard Chartered Bank of Kenya Limited
    [2008] eKLR
  • Prof. Christopher Mwangi Gakuu v Kenya National Highway Authority & 5 others
    [2013] eKLR
  • Nancy Mwangi t/a Worthlink Marketers v Airtel Networks (K) Limited (Formerly Celtel Kenya Limited) & 2 others
    [2017] eKLR
  • M W K v A M W
    [2016] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Henderson v Henderson
    [1843] 67 ER 313
  • Njue Ngai v Ephantus Njiru Ngai & another
    [2016] eKLR
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
Jurisdiction invoked
Not expressly stated; first-instance suit before the Environment and Land Court

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, "Gilbert Kabage Karianjahi (Suing for and on behalf of Kaguku Karianjahi) v Richard Maina Mutungi [2019] KEELC 502 (KLR)", Case Analysis (2019). Not stated in the judgment (arising from Nakuru CMCC No. 2396 of 2006 and Nakuru CMCC No. 595 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/502/eng@2019-12-04

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