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ELCDismissedNot stated in judgment (Plaint filed 22nd June, 2018)· [2019] KEELC 4363 (KLR)

Hassan Iddi Malambu & another v Bestel Agencies Company Limited & 2 others [2019] KEELC 4363 (KLR)

Environment and Land Court
27 February 2019
COChristine Ochieng
1,395 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kajiado ruled that a case dismissed on a technicality does not bar a fresh lawsuit over the same land.

What this practically means

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Executive summary

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The 2nd Defendant, Azelia Investments Limited, moved the court by Notice of Motion dated 20th July 2018, brought under section 7 of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules, seeking the striking out and dismissal of the Plaintiffs' suit filed on 22nd June 2018 on the ground that it was res judicata. The application was supported by the 1st Defendant, Bestel Agencies Company Limited, and opposed by the Plaintiffs, who contended that the fraudulent transfer of the suit land, NGONG/NGONG/5048, from the estate of the deceased Amina Naanyu Malambu had never been heard and determined on the merits. The court framed a single issue: whether the suit was res judicata. It noted that while the same land was in issue in Milimani ELC No. 87 of 2013 between overlapping parties, Justice Gitumbi had dismissed that suit on the question of locus standi rather than on the merits, and that the Kajiado ELC Miscellaneous Application No. 98 of 2017 concerned only removal of a caution, not ownership. Relying on section 7 of the Civil Procedure Act and authorities including Uhuru Highway Development Ltd v Central Bank and MWK v AMW, the court held that res judicata applies only where a former suit was heard and determined on its substantive merits. The application was therefore dismissed, with the parties urged to comply with Order 11 for expeditious hearing of the suit.

Key legal issues

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01

Whether the instant suit is res judicata having regard to Milimani ELC No. 87 of 2013 and Kajiado ELC Misc. Application No. 98 of 2017

Holding

The suit is not res judicata. The Milimani suit was dismissed on locus standi, not on the merits, and the Kajiado miscellaneaous application concerned removal of a caution, not ownership of the land

Reasoning

Section 7 requires a former suit between the same parties litigating under the same title, heard and finally decided by a competent court. Although the same land parcel NGONG/NGONG/5048 was in issue and the parties overlapped, Justice Gitumbi dismissed Milimani ELC No. 87 of 2013 on the question of locus, which is a technical and not a merits determination. The Kajiado application dealt only with removal of a caution and not determination of ownership. Res judicata therefore does not arise and the suit should proceed to full hearing.

p. 2

Legal principles established

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  • Res judicata under section 7 of the Civil Procedure Act applies only where the former suit was heard and finally determined on its merits, not where it was dismissed on a technical point such as locus standi

Court orders

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  1. 1.The 2nd Defendant's Notice of Motion application dated 20th July, 2018 is dismissed
  2. 2.Parties urged to comply with Order 11 to enable the suit be heard and determined expeditiously

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Civil Procedure RulesOrder 11

Cases cited (4)

  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Ngoni Matengo Cooperative Marketing Union Ltd. Vs Alimahomed Osman
    (1959) EA 577
  • MWK Vs AMW
    (2016) eKLR
Jurisdiction invoked
Sections 7 of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules

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, "Hassan Iddi Malambu & another v Bestel Agencies Company Limited & 2 others [2019] KEELC 4363 (KLR)", Case Analysis (2019). Not stated in judgment (Plaint filed 22nd June, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4363/eng@2019-02-27

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