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ELCPartially AllowedELC Case at Kerugoya (plaint dated 8th June 2012)· [2019] KEELC 1245 (KLR)

Lucy Wanjiru Murimi & 2 others v Josephine Wairimu Githinji [2019] KEELC 1245 (KLR)

Environment and Land Court
18 October 2019
ECE.C. Cherono
1,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that losing a land dispute in earlier cases means you cannot bring the same claim again, and ordered the occupant's eviction.

What this practically means

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Executive summary

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The plaintiffs, widow and son of Cyrus Githinji Karuri (deceased), sued for a declaration of ownership of land parcel KIINE/SAGANA/2321, mesne profits and eviction of the defendant, who lodged a defence and counter-claim asserting the parcel is her matrimonial home built with her late husband around 1974. The defendant claimed she was excluded from the distribution of her husband's estate. The court traced a long chain of prior litigation: Succession Cause No. 65 of 2003 (Kerugoya), in which parcels including the suit property were removed from the deceased's estate; HCCA No. 25 of 2004 (Nyeri), dismissed by Khamoni J on 30th July 2004; C.A No. 16 of 2013 (Nyeri), where an extension application was dismissed by Koome JA on 10th October 2013; and Petition No. 4 of 2014 (Kerugoya), dismissed by Olao J on 10th November 2017. Holding that the suit property belongs to the plaintiffs and that the claim was proved on a balance of probabilities, the court allowed the claim in part: it declared the plaintiffs legal owners and ordered the defendant's eviction, with costs to the plaintiffs, but made no order on mesne profits. The counter-claim was dismissed as unproved and barred by res-judicata under Section 7 of the Civil Procedure Act, applying the conjunctive elements from the Maina Kiai decision of the Court of Appeal. Judgment delivered at Kerugoya on 18th October 2019 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Ownership of the suit property

Holding

The plaintiffs proved ownership on a balance of probabilities based on the chronology of prior decisions

Reasoning

The court traced the history of litigation over parcel KIINE/SAGANA/2321 through the succession cause, the High Court appeal, the Court of Appeal and a prior ELC petition, all of which resolved the property's status in the plaintiffs' favour. On that cumulative evidence, the court found the plaintiffs' claim proved and allowed it as prayed.

p. 2
02

Res-judicata against the counter-claim

Holding

The counter-claim is barred by Section 7 of the Civil Procedure Act as the same issues were finally determined in prior suits between the same parties

Reasoning

The defendant had previously sought to include the suit property in the deceased's estate; her attempts failed in the succession cause, on appeal to the High Court, in the Court of Appeal and in ELC Petition No. 4 of 2014. Applying the conjunctive elements in IEBC v Maina Kiai, the court held she cannot re-litigate the same issue indefinitely.

p. 2

Legal principles established

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  • The five elements for raising the bar of res-judicata are conjunctive
  • Res-judicata serves the statutory aim of bringing finality to litigation and rests in the public interest

Court orders

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  1. 1.A declaration that the plaintiffs are the legal owners of land parcel No. KIINE/SAGANA/2321
  2. 2.An order of eviction against the defendant, her agents and/or servants from land parcel No. KIINE/SAGANA/2321
  3. 3.The defendant to bear the costs of this suit and the dismissal of the counter-claim
  4. 4.No order as to mesne profits

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Court of Appeal RulesRule 41

Cases cited (1)

  • Independent Electoral and Boundaries Commission Vs Maina Kiai & 5 others
    C.A No. 105 of 2017 (2017) e K.L.R
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (not expressly stated in the judgment; suit is an original land claim)

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, "Lucy Wanjiru Murimi & 2 others v Josephine Wairimu Githinji [2019] KEELC 1245 (KLR)", Case Analysis (2019). ELC Case at Kerugoya (plaint dated 8th June 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1245/eng@2019-10-18

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