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ELCPartially AllowedNotice of motion dated 18th March 2015 (suit number not stated in the excerpt)· [2019] KEELC 2699 (KLR)

Fredrick Njoroge & 2 others v Francis Maingi Njoroge & another [2019] KEELC 2699 (KLR)

High Court of Kenya
27 June 2019
LKL. Komingoi
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a family land suit because the same parties had already settled the land distribution in a succession case years earlier.

What this practically means

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Executive summary

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The defendants/applicants filed a notice of motion dated 18th March 2015 under Order 2 rule 15(d) and Order 51 rule 1 of the Civil Procedure Rules 2010 and sections 1A, 1B, 3, 3A and 7 of the Civil Procedure Act, seeking striking out of the plaintiffs' suit as res judicata, an abuse of court process and/or overtaken by events. They argued that the subject parcel, Kiambaa/Waguthu/226, was removed from the deceased's estate by consent orders in High Court Succession Cause No. 1699 of 2000, that the resultant parcels (including Kiambaa/Waguthu/1604 and 1612) had been distributed and transferred to third parties, and that issues of ownership were already determined in Kiambu SPM Land Case No. 47 of 2000 and High Court Civil Appeal No. 7 of 2001. The 3rd plaintiff/respondent opposed, contending that the elements of section 7 had not been demonstrated and that the fraudulent subdivision and transfers had never been adjudicated, invoking lis pendens. The court found that the existence of Kiambaa/Waguthu/226 was an issue in the succession cause, where the plaintiffs consented to its removal from the list of assets and identified the beneficiaries of the resultant parcels; the plaintiffs were therefore estopped from re-opening distribution. Applying Pop In Kenya Ltd v Habib Bank AG Zurich, the court held that res judicata extends to all points that properly belonged to the litigation. The suit was struck out for being res judicata, an abuse of process and overtaken by events, with no orders as to costs as the dispute was between family members. Judgment delivered on 27th June 2019 by L. Komingoi, Judge.

Key legal issues

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01

Whether the plaintiffs' suit is res judicata having regard to the consent orders in High Court Succession Cause No. 1699 of 2000

Holding

The suit is res judicata because the existence and distribution of Kiambaa/Waguthu/226 and its resultant parcels were directly in issue and finally dealt with in the succession cause between the same parties

Reasoning

Section 7 bars trying a matter directly and substantially in issue in a former suit between the same parties heard and finally decided. In the succession cause the plaintiffs consented to removal of Kiambaa/Waguthu/226 from the list of assets and identified the parcels to be distributed to beneficiaries. Having acknowledged the mother title was subdivided, they are estopped from re-opening distribution of the resultant parcels in this suit.

p. 3
02

Whether the suit is an abuse of court process and overtaken by events

Holding

Yes - the amended plaint sought subdivision of a parcel that no longer existed, contradicting the consent recorded in the succession cause, and the parcels have since been transferred to third parties

Reasoning

Prayer (c) of the amended plaint sought an order directing subdivision of Kiambaa/Waguthu/226 according to the deceased's written wishes, yet the same parcel had been removed from the estate's assets by consent in the succession cause. Continuing the suit against the defendants, who had since transferred the parcels to third parties, amounted to abuse of process and litigation had to come to an end.

p. 2

Legal principles established

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  • A party who acknowledges in a former suit that land was not available for distribution is estopped from re-opening the issue of distribution of the resultant parcels
  • Res judicata extends to every point which properly belonged to the subject of litigation and which could with reasonable diligence have been raised at the time

Court orders

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  1. 1.That the plaintiffs' suit against the defendants be and is hereby struck out for being res judicata and for abuse of the court process and/or overtaken by events.
  2. 2.No orders as to costs.

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure Rules 2010Order 2 rule 15(d)
  • Civil Procedure Rules 2010Order 51 rule 1

Cases cited (5)

  • Margaret Mumbi Kagiri vs Kagiri Wamairwe
    [2007] eKLR
  • Pop In Kenya Limited & 3 others vs Habib Bank AG Zurich
  • Godfrey Nyingi Mwati & 2 Others vs Milka Ntambura Magu & 3 Others
    [2006] eKLR
  • Geoffrey Mundia Kabethi vs Peter Wanjohi Njogu & Another
    [2013] eKLR
  • Naftali Ruthi Kinyua vs Patrick Thuita Gachure & Another
    Nairobi Civil Appeal No. 44 of 2014
Jurisdiction invoked
Order 2 rule 15(d), Order 51 rule 1 of the Civil Procedure Rules 2010, sections 1A, 1B, 3, 3A and 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, "Fredrick Njoroge & 2 others v Francis Maingi Njoroge & another [2019] KEELC 2699 (KLR)", Case Analysis (2019). Notice of motion dated 18th March 2015 (suit number not stated in the excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2699/eng@2019-06-27

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