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ELCStruck OutNairobi ELC Case (plaint dated 5/3/2013; 1st defendant's notice of motion dated 16/7/2018)· [2019] KEELC 3795 (KLR)

Samuel Bede Ogembo v Ann Karura Kibati & 2 others [2019] KEELC 3795 (KLR)

Environment and Land Court
13 March 2019
1,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land dispute suit because the same issues had already been decided, confirming you cannot relitigate by claiming fraud.

What this practically means

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Executive summary

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The 1st defendant, Anne Kirura Kibati, brought a notice of motion dated 16/7/2018 seeking to strike out the plaintiff's suit against her on the ground that the dispute over the transfer and ownership of Plot No. 4 out of LR No. 2259/141 (now LR No. 2259/660) had been fully heard and determined in Nairobi ELC No. 31 of 2009, and to set aside interim orders restraining her from dealing with the property. The prior suit, decided by Justice Mbogholi Msagha, had ordered specific performance of a 2004 sale agreement between the parties. The plaintiff opposed the application, denying he instructed the advocates who executed the sale agreement, asserting he refunded the deposit, and contending the prior proceedings were fraudulent so res judicata could not apply. Justice B M Eboso framed the sole question as whether the suit offended Section 7 of the Civil Procedure Act. Counsel for the plaintiff conceded the issues had been determined in the prior suit but maintained the proceedings were fraudulent. The court held that such allegations should have been raised in the prior suit or on appeal, and that bringing fresh proceedings alleging fraudulent court proceedings in a court of equal status is a flagrant abuse of process. The court found the suit res judicata, held it had no jurisdiction, allowed the motion in terms of prayers 2 and 3, struck out the suit against the 1st defendant, set aside the interim orders, and ordered the plaintiff to bear the costs of the suit.

Key legal issues

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01

Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is res judicata as the issues were heard and determined in Nairobi ELC Case No. 31 of 2009 between the same parties

Reasoning

The court found the issues in the present suit had been litigated and determined by the High Court in Nairobi ELC No. 31 of 2009, where Justice Mbogholi Msagha ordered specific performance of the 2004 sale agreement. Counsel for the plaintiff conceded this but argued the prior proceedings were fraudulent. The court held such allegations belonged in the prior suit or on appeal; raising them in fresh proceedings is an abuse of process. The court therefore lacked jurisdiction.

p. 2
02

Whether the plaintiff's allegation of fraudulent prior proceedings defeats res judicata

Holding

No; allegations of fraudulent proceedings cannot found fresh proceedings in a court of equal status

Reasoning

The plaintiff argued the prior proceedings were fraudulent and that no party would be prejudiced by fresh litigation. The court rejected this, holding that fraud allegations regarding a prior determination must be raised in that suit or in the appellate court, not in a parallel suit of equal standing. Such conduct constitutes flagrant abuse of court process and this court is not the forum for such allegations.

p. 2

Legal principles established

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  • A party alleging fraudulent proceedings in a decided suit must raise it in that suit or on appeal, not in fresh proceedings before a court of equal status
  • Res judicata requires a previous suit in which the same issue was heard and determined by a competent court

Court orders

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  1. 1.Allowed the 1st defendant's notice of motion dated 16/7/2018 in terms of prayers 2 and 3
  2. 2.Struck out the plaintiff's suit against the 1st defendant as res judicata
  3. 3.Set aside the interim orders barring the 1st defendant from dealing with LR No. 2259/660
  4. 4.Plaintiff to bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (2)

  • Henderson v Henderson
    (1843) 67ER 313
  • Anne Karura Kibati v Samuel Bede Ogembo
    Nairobi ELC No. 31 of 2009
Jurisdiction invoked
Section 7 of the Civil Procedure Act (res judicata); the court found it had no jurisdiction to entertain the suit

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, "Samuel Bede Ogembo v Ann Karura Kibati & 2 others [2019] KEELC 3795 (KLR)", Case Analysis (2019). Nairobi ELC Case (plaint dated 5/3/2013; 1st defendant's notice of motion dated 16/7/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3795/eng@2019-03-13

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