Rose Njoki King’au v National Land Commission & 3 others [2019] KEELC 1128 (KLR)
The bottom line
#Kenya's Environment and Land Court barred a landowner from re-filing a property ownership claim already decided by a lower court and the Court of Appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's suit is res judicata by reason of the prior suit ELC 2002 of 2007 and the appeal therein
The suit is res judicata; the issue of ownership of the suit property was determined in the ruling of 2010 and by the Court of Appeal judgment of 26th October 2018, and the plaintiff had exhausted all avenues against the 4th defendant.
Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally decided by a competent court. The prayers in the present suit are the same as in the former suit; the only difference is the addition of the 1st and 2nd defendants. The prior suit was struck out with judgment entered for the 4th defendant, and the appeal was dismissed. Striking out with judgment entered does not leave the plaintiff free to litigate afresh.
Whether a struck-out suit bars a fresh suit on the same cause
Where the striking out was accompanied by judgment entered in favour of the defendant and the plaintiff appealed rather than filing a fresh suit, the matter was heard and finally decided and res judicata applies.
The plaintiff argued that striking out does not trigger res judicata and that she could file a fresh suit. The court rejected this: if that were so, she would have filed a fresh suit after the 2010 ruling instead of appealing. The Court of Appeal dealt with the ownership issue at length, and summary judgment/striking out with judgment is a valid avenue of disposing of a suit and a final determination on the matter.
Whether striking out the suit would breach the plaintiff's right to a fair hearing under Article 50
No; the plaintiff was not denied an opportunity to ventilate her claim merely because she was not put on the witness stand in the prior proceedings.
The plaintiff invoked Article 50 and argued she would be condemned unheard. The court held that the issue of ownership had been dealt with by the High Court and the Court of Appeal, and that the plaintiff had an opportunity to litigate her claim; the pendency of the former suit against the 3rd defendant gave her the option of enjoining the additional parties in that suit.
Legal principles established
#- The doctrine of res judicata requires a previous suit in which the matter was in issue, the same parties or parties litigating under the same title, determination by a competent court on merit, and re-raising of the issue in a fresh suit.
- A suit struck out with judgment entered (and upheld on appeal) constitutes a matter heard and finally decided for purposes of res judicata.
Court orders
#- 1.That the plaintiff's notice of motion dated 12th November 2018 and the suit as against the 4th defendant is hereby struck out with costs to the 4th defendant
- Jurisdiction invoked
- Order 2 rule 15(b) and (c), Order 51 rule 1, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Njoki King’au v National Land Commission & 3 others [2019] KEELC 1128 (KLR)", Case Analysis (2019). Not stated in judgment (ELC Suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1128/eng@2019-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.