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ELCPartially AllowedNyandarua ELC Case (suit dated 23rd July 2013)· [2019] KEELC 2954 (KLR)

Damaris Waithira Mungai v Mugo Ngobia Mugo [2019] KEELC 2954 (KLR)

Environment and Land Court
18 June 2019
MOM.C. Oundo
1,552 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to strike out a duplicate land suit, instead transferring it for possible consolidation with an older pending case over the same property.

What this practically means

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Executive summary

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The Defendant filed a Notice of Preliminary Objection dated 25th June 2018 seeking to have the Plaintiff's suit, which sought perpetual injunction and eviction orders over land parcel Nyandarua/Ndemi/1131, struck out as incompetent, bad in law and an abuse of process. The Defendant argued the suit offended Sections 5, 6 and 7 of the Civil Procedure Act because the same cause of action was before Nyahururu SPMCC No. 288 of 1992, and that a Nyandarua Land Dispute Tribunal decision, adopted in Nyahururu SPMCC Misc No. 21 of 1999 with a decree issued on 31st January 2012, rendered the suit res judicata. The Plaintiff filed no response. The court applied the Mukisa Biscuits test for preliminary objections and framed two issues: sub judice and res judicata. On sub judice, the court found the parties and subject matter substantially the same and the Nyahururu suit still pending (stood over generally since 9th May 2016), so section 6 was properly invoked and that limb succeeded. On res judicata, the court held that since the Nyahururu suit had not been heard and finally decided, that limb failed. Declining to strike out the suit, and guided by the overriding objective and section 3A, the court ordered the suit transferred to the Chief Magistrate's Court Nyahururu for the parties to consider consolidating it with Nyahururu PMCC 288 of 1992, with the plaintiff to meet the costs of the application at a lower scale since it was undefended. Judgment delivered by M.C. Oundo, Environment and Land Judge, at Nyahururu on 18th June 2019.

Key legal issues

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01

Whether the present suit is sub judice Nyahururu SPMCC No. 288 of 1992

Holding

The preliminary objection on sub judice succeeds; section 6 of the Civil Procedure Act is properly invoked as the Nyahururu suit is still pending

Reasoning

The court compared the parties and subject matter of the two suits and found them the same, save for the joinder of the Attorney General and Permanent Secretary Ministry of Lands in the earlier suit. The Nyahururu suit was part heard and later stood over generally, hence still pending. The overlapping cause of action triggered section 6, and the suit was transferred for possible consolidation rather than struck out.

p. 2
02

Whether the present suit is res judicata Nyahururu SPMCC No. 288 of 1992

Holding

The res judicata limb fails because the Nyahururu suit has not been heard and finally decided

Reasoning

Under section 7 of the Civil Procedure Act, res judicata requires that the matter in issue was heard and finally decided by a competent court in a former suit between the same parties. Since the Nyahururu matter was stood over generally on 9th May 2016 and has not been concluded, the requirement of final determination is not met and that limb of the objection fails.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties

Court orders

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  1. 1.This suit is hereby transferred to the Chief Magistrate's Court Nyahururu for the parties to consider consolidating it with Nyahururu PMCC 288 of 1992
  2. 2.The plaintiff will meet the costs of this application at a lower scale since it was undefended

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 6
  • Civil Procedure Act Cap 21Section 7
  • Civil Procedure Act Cap 21Section 1B
  • Civil Procedure Act Cap 21Section 3A
  • Civil Procedure ActSections 5, 6 and 7 (as cited in the preliminary objection)

Cases cited (1)

  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA. 696
Jurisdiction invoked
Sections 1B, 3A, 6 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, "Damaris Waithira Mungai v Mugo Ngobia Mugo [2019] KEELC 2954 (KLR)", Case Analysis (2019). Nyandarua ELC Case (suit dated 23rd July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2954/eng@2019-06-18

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