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ELCStruck OutKitale ELC No. 7 of 2018· [2019] KEELC 3434 (KLR)

Eldoret Express Company Limited v Martin Nyongesa & 6 others [2019] KEELC 3434 (KLR)

Environment and Land Court
13 May 2019
MNMwangi Njoroge
2,911 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 dispute suit was struck out because the same company had already litigated the same issues in an earlier case it lost.

What this practically means

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Executive summary

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Eldoret Express Limited filed Kitale ELC No. 7 of 2018 on 22 January 2018 seeking temporary injunctions restraining the defendants from entering, occupying, trespassing on, subdividing or interfering with its occupation of LR 5707(6) IR No. 43019 at Kiungani, together with declarations that post-2001 subdivisions and dealings, the issuance of a provisional certificate of title, the revival of Tawai Limited [1974] and the incorporation of Tawai Limited [2005] were fraudulent nullities, cancellation of the provisional title, and deregistration of Tawai Limited. The 2nd and 3rd defendants filed preliminary objections contending the suit was res judicata, offended Sections 6 and 7 of the Civil Procedure Act and was an abuse of process, having been concluded in Eldoret ELC No. 87 of 2013 (Eldoret Express Company Limited v Tawai Limited & Another), from which an appeal was pending. The plaintiff argued the parties and prayers differed and that special circumstances existed. Relying on Section 7 of the Civil Procedure Act and the five-limb test in Bernard Mugo Ndegwa v James Nderitu Githae, and adopting the Henderson v Henderson principle, Mwangi Njoroge J found the suit touched on issues already litigated between the same parties before a competent court; the plaintiff had merely applied a facelift to the prayers and added parties without pleading anything new. The court struck out the suit with costs to the defendants.

Key legal issues

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01

Whether the present suit is res judicata having regard to Eldoret ELC No. 87 of 2013

Holding

The suit is res judicata; the issues were litigated and concluded before a competent court between the same parties, and the plaintiff merely applied a facelift to the prayers and added parties without pleading anything new.

Reasoning

Applying the five-limb test from Bernard Mugo Ndegwa v James Nderitu Githae (identical issues, same parties, same title, concurrence of jurisdiction, finality), the court compared the two suits and found that the claims over LR 5707/6, the parties and the reliefs substantially overlapped. The Henderson v Henderson extension barred points that could have been raised in the earlier suit. The plaintiff's contention that parties and prayers differed did not avail since nothing new was pleaded against the added parties.

p. 4

Legal principles established

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  • A suit in which the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties litigating under the same title before a court of competent jurisdiction is barred by Section 7 of the Civil Procedure Act
  • Repackaging or adding cosmetic changes to prayers and adding parties does not evade res judicata where nothing new is pleaded that could not have been raised in the former suit

Court orders

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  1. 1.The suit is struck out for being res judicata contrary to Section 7 of the Civil Procedure Act
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 6 and 7
  • Companies ActCap 486
  • Limitation of Actions ActSection 7 (Cap 22)

Cases cited (7)

  • Eldoret Express Company Limited v Tawai Limited & Another
    ELC 87 of 2013 (2017) eKLR
  • Nancy Mwangi T/A Worthlin Marketers v Airtel Networks (K) LTD & 2 others
    (2014) eKLR
  • Njangu vs Wambugu & Another
    Nairobi HCCC No. 2340 of 1991 (unreported)
  • LAL Chand V. Radha Kishan
    Air 1977 SC 789
  • William Koross (Legal personal representative of Elijah C.A Koross) Vs. Hezekiah Kiptoo Komen & 4 others
    (2013) eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae and 2 Others
    (2010) eKLR
  • HENDERSON VS HENDERSON
    (1843-60) ALL E.R.378
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; suit struck out under Section 7 of the Civil Procedure Act (res judicata)

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, "Eldoret Express Company Limited v Martin Nyongesa & 6 others [2019] KEELC 3434 (KLR)", Case Analysis (2019). Kitale ELC No. 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3434/eng@2019-05-13

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