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ELCDismissedNot stated in the judgment ( plaint dated 26/03/2015 )· [2019] KEELC 2596 (KLR)

David Gikenge Kimani & 13 others v Kabura Waweru & 5 others [2019] KEELC 2596 (KLR)

Environment and Land Court
28 June 2019
KBK. Bor
1,733 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs sued by plaint dated 26/03/2015 seeking a declaration that Kiambaa/Muchatha/T.175 and Kiambaa/Thimbigua/1304 remain subject to a customary trust established in earlier litigation, and that titles hived off the original parcels (Kiambaa/Muchatha/569 and L.R. Kiambaa/Thimbigua/7395, 7396, 7507 to 7519) and sold to the Defendants were fraudulent and null, with cancellation of those titles. The Defendants applied on 02/11/2018 for dismissal of the suit as res judicata, relying on Nairobi Civil Suit No. 568 of 1976, in which the 1st Defendant's suit to evict the Plaintiffs was dismissed and the court found that her deceased husband had been registered as trustee for the family, though the counterclaim prayers for subdivision were not addressed. The 1st Plaintiff opposed, arguing the present cause of action was the subsequent fraudulent sale, never adjudicated. Bor J framed a single issue: whether the suit was res judicata. Applying Henderson v Henderson, the court held the same properties and essentially the same parties were involved; the trust issue was determined in 1976 and never appealed; the subdivision prayers should have been pursued by review or enforcement of that judgment. Filing multiple suits over 40 years contravened the rule against piecemeal litigation, and no special circumstances justified hearing the suit. The application was allowed and the suit dismissed, with each party bearing its own costs as a family dispute.

Key legal issues

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01

Whether the present suit is res judicata by reason of Nairobi Civil Suit No. 568 of 1976

Holding

Yes. The same properties and essentially the same parties litigated the trust issue, which was determined; the subdivision prayers ought to have been pursued there by review or enforcement, and the suit is barred.

Reasoning

The court compared the plaint and counterclaim in the 1976 suit with the present plaint. The prior court found a customary trust in favour of the family and dismissed the 1st Defendant's suit; the decision was never appealed. The present claim of fraudulent subdivision arises from the same subject of litigation and could have been raised there. Filing multiple suits over 40 years was improper; litigation must come to an end, and no special circumstances justified entertaining the suit.

p. 2

Legal principles established

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  • For res judicata to apply, the matter must have been directly and substantially in issue in a previous suit between the same parties or those claiming under them, litigating under the same title, and must have been finally decided.
  • A party must present their whole case at once and may not litigate piecemeal; matters which could have been raised in earlier proceedings are barred.
  • Where a judgment declares a trust, the beneficiary should enforce that judgment (or seek review) rather than file fresh suits.

Court orders

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  1. 1.The Defendants' application dated 2/11/2018 seeking dismissal of the suit for being res judicata is allowed
  2. 2.The Plaintiffs' suit is dismissed as res judicata
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Act (res judicata doctrine, provision not expressly named in the judgment)Not specified

Cases cited (2)

  • Henderson Vs. Henderson
    (1843-60) ALL E.R 378
  • ANM v PMN
    [2016] eKLR
Jurisdiction invoked
Original civil suit under the court's jurisdiction over land disputes (Res Judicata application under civil procedure law; specific provision not cited in the judgment)

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, "David Gikenge Kimani & 13 others v Kabura Waweru & 5 others [2019] KEELC 2596 (KLR)", Case Analysis (2019). Not stated in the judgment ( plaint dated 26/03/2015 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2596/eng@2019-06-28

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