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ELCStruck OutELC Case No. 73 of 2018 (Nairobi)· [2019] KEELC 2786 (KLR)

Charles Mungai Nyaguthie & another (suing as legal representatives of the Estate of Esther Nyaguthii Njuru) v Geofrey Gitau Njuru & 5 others [2019] KEELC 2786 (KLR)

Environment and Land Court
25 June 2019
EOE. O. Obaga
1,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a family land claim because the deceased's earlier identical case had already abated, and no fresh suit was allowed.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Esther Nyaguthii Njuru, sued her brother and others claiming that the 1st Defendant held half of LR Muguga/Gitaru/1394 (since subdivided into LR Muguga/Gitaru/2429-2436) in trust for the deceased, and sought cancellation of the subdivisions so that half the property could be registered in their names. The deceased had herself previously sued the 1st Defendant on the same trust claim in HCCC No. 590 of 2012, later ELC 150 of 2012; she died on 12th May 2015 and that suit abated, the file being closed on 11th October 2017 after the administrators' applications to substitute themselves and to revive the suit were dismissed. The Defendants raised a five-ground preliminary objection contending, among other things, that the suit was premised on tribunal proceedings and orders set aside by the High Court, and that it contravened Order 24 Rule 7(1) of the Civil Procedure Rules, which bars a fresh suit on the same cause of action after abatement. The court applied the Mukisa Biscuit definition of a preliminary objection. It rejected the tribunal-premises ground because the plaint was based purely on trust. However, it found the cause of action identical to that in the abated suit - claiming half rather than the whole and adding the subdivision owners did not alter it - and upheld the objection, striking out the entire suit with no order as to costs given the parties' relationship.

Key legal issues

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01

Whether the suit was premised on the nullified tribunal proceedings and Resident Magistrate's Court orders

Holding

The ground failed; the plaint is based purely on trust and nowhere founds the claim on the tribunal award

Reasoning

The court examined the plaint and found no reference to the tribunal proceedings or the adoption of the award by the Kikuyu Resident Magistrate's Court. The tribunal proceedings were merely listed among documents. Since the claim was founded on customary trust, the defendants could not argue that the suit was premised on the nullified award and orders.

p. 2
02

Whether a fresh suit could be filed after the abatement of the deceased's suit on the same cause of action

Holding

It could not; the cause of action was identical and the suit offended Order 24 Rule 7(1), so the Preliminary Objection was upheld and the suit struck out

Reasoning

The deceased's suit (ELC 150 of 2012) abated and the file was closed on 11th October 2017. The administrators pursued the same property on the same trust claim; claiming half rather than the whole, and adding defendants because of subsequent subdivision, did not change the cause of action. The court applied Order 24 Rule 7(1) barring a fresh suit on the same cause of action.

p. 3

Legal principles established

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  • A preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit, and cannot be raised where facts must be ascertained or discretion exercised
  • Where a suit has abated or been dismissed, no fresh suit shall be brought on the same cause of action (Order 24 Rule 7(1), Civil Procedure Rules)
  • A cause of action is an act on the part of the Defendant which gives the Plaintiff his cause of complaint, and is not altered merely by a claimant seeking a different share or adding parties

Court orders

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  1. 1.The ground of the Preliminary Objection based on the set-aside tribunal proceedings is rejected
  2. 2.The Preliminary Objection on the ground that the suit offends Order 24 Rule 7(1) of the Civil Procedure Rules is upheld
  3. 3.The entire suit is struck out with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(1),(2), Rule 4(1)(3)(5), Rule 5
  • Civil Procedure RulesOrder 24 Rule 7(1)

Cases cited (3)

  • Mukisa Biscuit Manufacturing Company Limited Vs West End Distributors Ltd
    [1969] EA 696
  • Drummond Jackson Vs Britain Medical Association
    [1970] 2 WLR 688
  • William Muinde Kilundo Vs Peter K. Wambua & 3 Others
    [2018] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly quoted in the judgment; suit filed in the ELC as a trust/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, "Charles Mungai Nyaguthie & another (suing as legal representatives of the Estate of Esther Nyaguthii Njuru) v Geofrey Gitau Njuru & 5 others [2019] KEELC 2786 (KLR)", Case Analysis (2019). ELC Case No. 73 of 2018 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2786/eng@2019-06-25

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