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ELCStruck OutNot stated in the judgment· [2019] KEELC 1666 (KLR)

Ali Waziri Abubakari v District Land Registrar, Kakamega & another [2019] KEELC 1666 (KLR)

Environment and Land Court
26 September 2019
NMN.A. Matheka
922 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute because the same issue had already been decided in earlier cases between the same parties.

What this practically means

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Executive summary

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The 3rd defendant raised a preliminary objection seeking dismissal of the whole suit on grounds of res judicata, lack of locus standi, and that the suit was frivolous, vexatious and scandalous. It was contended that the claim and parties had already been dealt with in Kakamega CMCC No. 331 of 1990 and Bungoma HCCC No. 21 of 2007, and that the present suit was only filed to delay execution of the orders in the Bungoma case. The 1st and 2nd defendants supported the objection, relying on Njue Ngai vs. Ephantus Njiru Ngai & Another (2016) eKLR and the definition of res judicata in Black's Law Dictionary, Ninth Edition, and invoking Sections 6 and 7 of the Civil Procedure Act. The plaintiff opposed through a replying affidavit, arguing that the 3rd defendant had not discharged the burden of proof because copies of the pleadings and proceedings in the two prior suits had not been annexed. The court held that res judicata is properly raised by preliminary objection, reproduced Sections 6 and 7 of the Civil Procedure Act, and perused the pleadings and ruling in Bungoma HCCC No. 21 of 2007, in which the same parties or their representatives had litigated over the same subject matter and the suit had been dismissed as res judicata of the 1990 Kakamega case. Concluding that the present matter was res judicata of both prior suits, the court upheld the preliminary objection, struck out the suit and awarded costs to the defendants.

Key legal issues

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01

Whether the suit offends Section 7 of the Civil Procedure Act as res judicata

Holding

The suit is res judicata having regard to Kakamega CMCC 331 of 1990 and Bungoma HCCC 21 of 2007, which were heard and determined between the same parties over the same subject matter.

Reasoning

The court perused the pleadings and ruling in Bungoma HCCC 21 of 2007, where the same parties or their representatives litigated over the same parcels of land, and that court had itself dismissed the suit as res judicata of the 1990 Kakamega case. The parties and subject matter being identical, Section 7 barred the fresh suit, and the point was properly raised as a preliminary objection.

p. 2

Legal principles established

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  • Res judicata may properly be raised by way of preliminary objection under Sections 6 and 7 of the Civil Procedure Act.

Court orders

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  1. 1.Preliminary objection upheld and the suit struck out with costs to the defendants

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 6
  • Civil Procedure Act Cap 21Section 7

Cases cited (1)

  • Njue Ngai vs. Ephantus Njiru Ngai & Another
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction; Section 6 and 7 of the Civil Procedure Act Cap 21

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, "Ali Waziri Abubakari v District Land Registrar, Kakamega & another [2019] KEELC 1666 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1666/eng@2019-09-26

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