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ELCDismissedNotice of Motion dated 17th February 2017 (suit filed 17th February 2017)· [2019] KEELC 2254 (KLR)

Peter Ziro Koro & 2 others v Philiph Chilumo Mbaru [2019] KEELC 2254 (KLR)

Environment and Land Court
30 July 2019
JOJ. O. Olola
1,832 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a third lawsuit over the same land, confirming you cannot restart concluded disputes by simply adding new family members as plaintiffs.

What this practically means

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Executive summary

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The three Plaintiffs moved the court by Notice of Motion dated 17th February 2017 seeking an injunction restraining the Defendant from fencing, building on, encroaching upon, selling or dealing with land parcel Kilifi/Mtondia/320, on the basis that they purchased the land from one Andrea Chondo in 1982 and that the Defendant had fraudulently acquired its title and begun fencing it. The Defendant denied the Plaintiffs' ownership, asserting he has been the registered owner since 21st April 1997, and raised res judicata and abuse of process. He traced a long litigation history: a 2001 claim by the 2nd Plaintiff before the Bahari Land Disputes Tribunal, decided in the 2nd Plaintiff's favour and endorsed in Kilifi SRMCC Land Dispute Case No. 10 of 2004; an appeal to the Coast Provincial Land Disputes Appeal Tribunal (Appeal Case No. 307 of 2001), which on 26th November 2007 set aside the Tribunal's award and declared the Defendant the owner; a further appeal, Malindi HCCA No. 4 of 2008, dismissed on 18th September 2013 for want of prosecution; and a fresh suit, Malindi CMCC No. 217 of 2014, struck out on 15th March 2015 as an abuse of process. The court held that the present suit was the third suit over the same subject matter between the same parties, that the joinder of the 2nd Plaintiff's wife and son, who had no independent claim, did not escape Section 7 of the Civil Procedure Act, and that the Plaintiffs, having neither appealed nor sought setting aside of the 2015 striking-out, could not re-litigate. The application was struck out and the suit dismissed with costs to the Defendant.

Key legal issues

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01

Whether the present suit is res judicata and an abuse of the court process

Holding

Yes. The same parties have litigated the same parcel since 2001 before the Bahari Land Disputes Tribunal, the Provincial Land Disputes Appeal Tribunal, the Principal Magistrates Court and the High Court (Malindi HCCA No. 4 of 2008, dismissed 18th September 2013), and a fresh suit (Malindi CMCC No. 217 of 2014) was struck out as an abuse of process on 15th March 2015.

Reasoning

The court applied Section 7 of the Civil Procedure Act, finding the subject matter identical to that litigated since 2001. The joinder of the deceased 2nd Plaintiff's wife and son, who had no independent claim, did not alter the identity of the parties or the title under which they claimed. Having neither appealed nor sought to set aside the striking-out of CMCC No. 217 of 2014, the Plaintiffs could not re-litigate the same issue. Multiplicity of suits over a concluded dispute warranted striking out.

p. 3
02

Whether the Plaintiffs were entitled to an interlocutory injunction over Kilifi/Mtondia/320

Holding

No. The application failed together with the suit, which was struck out as an abuse of process.

Reasoning

Since the entire suit was barred by res judicata, the injunction application anchored on it had no foundation. The parcel had been registered in the Defendant's name since 21st April 1997, the Provincial Tribunal had directed the 2nd Plaintiff to vacate the plot, and the High Court appeal against that decision had been dismissed. The application therefore stood or fell with the doomed suit.

p. 3

Legal principles established

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  • Res judicata, under Section 7 of the Civil Procedure Act, bars a party from re-litigating 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 principle serves the public interest that litigation must come to an end.
  • Joining additional plaintiffs (wife and son of the original litigant) who have no independent claim does not escape res judicata.

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 17th February 2017 seeking an injunction is struck out
  2. 2.The Plaintiffs' suit filed on 17th February 2017 is dismissed
  3. 3.Costs of the suit and application awarded to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (1)

  • Wiliam Koros –vs- Hezekiah Kiptoo Komen & 4 Others
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over disputes relating to land parcel Kilifi/Mtondia/320; res judicata under Section 7 of the Civil Procedure Act

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, "Peter Ziro Koro & 2 others v Philiph Chilumo Mbaru [2019] KEELC 2254 (KLR)", Case Analysis (2019). Notice of Motion dated 17th February 2017 (suit filed 17th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2254/eng@2019-07-30

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