Florence Ndunge & another v Agnes Mwikali Mutungi & 3 others [2019] KEELC 4461 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land dispute because the same issue had already been decided in a 1980 case between the parties' predecessors.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit and application are res judicata by reason of the judgment in Nairobi HCCC No. 679 & 726 of 1980, in which the issue of ownership of plots 272 and 274 was determined between parties under whom the present parties claim
Section 7 of the Civil Procedure Act bars trying a suit or issue directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title, before a competent court that heard and finally decided it. The prior judgment declared Philip Mutungi absolute owner of plots 274 and 272; the present Plaintiffs claim under Solomon Mutyambui, whose claim was extinguished.
Jurisdiction (succession vs land)
Not necessary to decide; the suit was disposed of on res judicata
The 1st Defendant argued the dispute was purely succession-related and outside the Court's jurisdiction; the Plaintiffs relied on Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act. The Court did not make a finding on jurisdiction, having struck out the suit as res judicata.
Limitation of actions
Not determined; the Plaintiffs argued fraud-based postponement under Section 26 of the Limitation of Actions Act, but the suit was struck out on res judicata
The Plaintiffs contended they had been in continuous possession and that limitation only began on discovery of fraud under Section 26. The Court did not rule on this ground, resting its decision on Section 7 of the Civil Procedure Act instead.
Form of preliminary objection
The objection, though aimed at the application, was properly treated as directed against the plaint since the application rests on the plaint
The Court noted the objection was convoluted in targeting the application rather than the suit, but observed that an application has its legs on the plaint, and striking out the application alone on res judicata without the plaint would serve no purpose. The Court therefore struck out both.
Legal principles established
#- A matter is res judicata where the issue is directly and substantially in issue in a former suit between parties under whom the current parties claim, litigating under the same title, in a competent court which heard and finally decided it
Court orders
#- 1.The Plaintiffs' suit is struck out
- 2.The Plaintiffs' notice of motion application dated 7th November, 2017 and filed on 8th November, 2017 is struck out
- 3.The 1st Defendant shall have the costs of the main suit and the application
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Ndunge & another v Agnes Mwikali Mutungi & 3 others [2019] KEELC 4461 (KLR)", Case Analysis (2019). Not stated in the judgment (Makueni Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4461/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.