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ELCPartially AllowedKericho ELC (suit number not stated in judgment; relates to Land Parcel KERICHO/CHEMAGEL/1401)· [2019] KEELC 829 (KLR)

Christine Andree Joshi & 2 others v Sally Chebwogen Kirui [2019] KEELC 829 (KLR)

Environment and Land Court
15 November 2019
AKA. K. Kaniaru
2,709 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho (Kaniaru J, 15 November 2019) determined a preliminary objection raised by the plaintiffs in a suit seeking vacant possession/eviction from land parcel Kericho/Chemagel/1401. The plaintiffs had purchased the land at an auction conducted pursuant to a decree in HCC No. 3154 of 1989, in which the defendant's late husband, Philip Arap Kirui, was a judgment debtor and the land was sold as security. The defendant, in occupation, filed a defence and counter-claim asserting the land was her matrimonial home and seeking cancellation of the plaintiffs' title and injunctions. The plaintiffs objected that the counter-claim was res judicata, having been raised or ought to have been raised in HCC No. 3154 of 1989 and in HCC No. 1550 of 2002, a challenge to the auction brought by the defendant and her late husband that was dismissed for want of prosecution. The defendant argued that a suit dismissed for want of prosecution, and one that had abated, could not ground res judicata, relying on the Moka case, and that the objection rested on disputed facts contrary to Mukisa Biscuit. The court, relying on the Court of Appeal's reversal of the Moka decision and Njue Ngai, held that a suit dismissed for want of prosecution can found a res judicata plea, that the counter-claim mirrored the earlier suit, and that alternatively the issues should have been raised there. The court dismissed the counter-claim with costs but allowed the defence to stand.

Key legal issues

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01

Whether the defendant's counter-claim is barred by res judicata given HCC No. 1550 of 2002 (dismissed for want of prosecution)

Holding

Yes; the counter-claim mirrors the earlier suit in substance and prayers, and even issues not raised there but which ought to have been are caught by res judicata.

Reasoning

The court traced the litigation history: the disputed land was sold in execution of the decree in HCC No. 3154 of 1989; the defendant and her late husband sued challenging the auction in HCC No. 1550 of 2002, which was dismissed for want of prosecution and never revived. The counter-claim (cancellation of title, restraint from trespass) shows obvious similarities to that suit. A dismissal for want of prosecution supports a res judicata plea; alternatively, the constructive-res-judicata principle captures issues that should have been raised.

p. 3
02

Whether a suit dismissed for want of prosecution can found a res judicata plea

Holding

Yes; the defendant's contrary authority was displaced by the Court of Appeal decision in Civil Appeal No. 122 of 2018 setting aside the Mombasa High Court ruling.

Reasoning

The defendant relied on the Moka case that a suit dismissed for want of prosecution was not 'heard and determined' under Section 7. The plaintiffs demonstrated that decision was overturned on appeal, which held that such a suit can give rise to res judicata, citing Njue Ngai v Ephantus Njiru Ngai with approval. The court adopted that position.

p. 2
03

Whether the objection, being said to rest on disputed facts, is a proper preliminary objection

Holding

The court did not strike the objection down on this ground; it determined it on the merits by examining the records of the past suits.

Reasoning

The defendant argued per Mukisa Biscuit that the objection was hinged on disputed facts and thus improper. The court nevertheless considered the objection alongside the case records and the rival submissions, and resolved the objection on the res judicata question rather than on its formal propriety.

p. 2

Legal principles established

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  • A suit dismissed for want of prosecution can be a proper basis for raising a defence of res judicata.
  • Res judicata extends not only to issues actually decided but to every point which properly belonged to the subject of litigation and could have been raised.
  • Only the suit filed by a defendant (the counter-claim), not her defence, is eligible for striking out on res judicata.

Court orders

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  1. 1.The defendant's counter-claim is dismissed with costs
  2. 2.The defendant's defence is allowed to stand

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 7

Cases cited (13)

  • Omondi v National Bank of Kenya Ltd
    (2001) KLR 549
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
  • William Korross v Hezekiah Kiptoo Komen & 4 Others
    (2015) eKLR
  • Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Ltd & 3 Others
    (2017) eKLR
  • E.T. v Attorney General & Another
    (2012) eKLR
  • Cosmas Mrombo Moka v Co-operative Bank of Kenya Limited & Legacy Auctioneering Services
    HCC No. 7 of 2018, Mombasa
  • Albert Magu Musa v Samuel Kagundu Muchira & 3 Others
    HCCA No. 10 of 2016, Kerugoya
  • Mukisa Biscuit Company v West End Distribution Limited
    (1969) EA 696
  • Republic v Eldorect Water & Sanitation Company Limited Exparte Booker Onyango & 2 Others
    HCC Misc. Appl. No. 97 of 2003, Eldoret
  • Njue Ngai v Ephantus Njiru Ngai & Another
    (2016) eKLR
  • Bank of Credit and Commerce International (Overseas) Limited v Sun Produce Exporters Ltd, Philip Arap Kirui & 2 Others
    HCC No. 3154 of 1989
  • Philip Arap Kirui and Sally Chepwogen Kirui v Delphis Bank Limited (In Liquidation), Moses K. Korir t/a Dwaning Agencies, Steve Elikington & Jimmy Joshi
    HCC No. 1550 of 2002 (later HCC No. 3 of 2009)
  • Civil Appeal No. 122 of 2018 (appeal from Cosmas Mrombo Moka case)
    Civil Appeal No. 122 of 2018
Jurisdiction invoked
Original civil jurisdiction; preliminary objection under Section 7 of the Civil Procedure Act (Cap 21) and Order 2 rule 3(2) via defence to counter-claim dated 26 June 2014 and notice dated 28 May 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Christine Andree Joshi & 2 others v Sally Chebwogen Kirui [2019] KEELC 829 (KLR)", Case Analysis (2019). Kericho ELC (suit number not stated in judgment; relates to Land Parcel KERICHO/CHEMAGEL/1401). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/829/eng@2019-11-15

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