Peris Ndagara w/o Kaumbuthu (Deceased) & 3 others v Joseph Njiru s/o Mbogo & 5 others [2019] KEELC 4518 (KLR)
The bottom line
#The court struck out a land claim that tried to reopen a dispute already decided in 1987, and ordered the person driving the case to personally pay all costs.
What this practically means
#Executive summary
#Key legal issues
#Res judicata under section 7 of the Civil Procedure Act
The amended originating summons is res judicata as the same subject matter (Title No. Kagaari/Kigaa/404), the same claim of adverse possession and parties claiming under the same title were heard and finally decided in Nairobi HCCC No. 1253 of 1975 (OS) by judgment of 9 April 1987
The subject matter of both suits is the same parcel of land. The 1st and 2nd Plaintiffs in this suit were the Applicants in the previous suit where adverse possession was adjudicated with finality in their favour. Adding parties and defendants who inherited through succession does not avoid res judicata. The prior judgment by Justice Schofield was by a competent court.
Abuse of court process
The instant suit is essentially an abuse of the court process and the Defendants ought not to be vexed again over the same cause of action
The court agreed with the Defendants that litigation must come to an end. The Plaintiffs also failed to enforce the decree from the 1987 judgment until 2011, when it was already statute-barred under section 4 of the Limitation of Actions Act. Re-litigating settled matters burdens the court and opposing parties.
Fraud allegations in succession proceedings
Allegations that the Defendants fraudulently acquired the suit property through succession proceedings cannot be ventilated in an adverse possession originating summons; they are for the succession court
The court held that any complaint about a forged will or fraudulent acquisition of the grant in Nyeri P & A Cause No. 5 of 1979 under section 76 of the Law of Succession Act is a matter for the succession court, not this suit. A 2010 application for revocation had been dismissed for non-attendance.
Costs against a non-party litigant driving proceedings
The 4th Plaintiff, who drove the litigation while claiming no relief or interest, was ordered to personally bear the costs, shielding the Kaumbuthu family
Although costs follow the event under section 27 of the Civil Procedure Act, the court found the 4th Plaintiff had acted as the mover and self-appointed 'advocate' of the family, filing incompetent pleadings and misleading them at needless expense. It would be unfair to penalize the 1st–3rd Plaintiffs for his conduct.
Legal principles established
#- A suit is barred by res judicata where a party seeks to bring before the court, in another form, a transaction already adjudicated upon by a court of competent jurisdiction, including every point which properly belonged to the subject of the former suit
- Joinder of additional parties does not defeat a plea of res judicata
- The rationale of res judicata is the public interest in an end to litigation and protection from repetitive litigation
Court orders
#- 1.The Defendants' notice of preliminary objection dated 22 June 2018 is allowed
- 2.The Plaintiffs' amended originating summons dated 13 April 2018 and filed on 16 April 2018 is struck out
- 3.Costs of the suit to be borne solely by the 4th Plaintiff, Andrew Ireri Njeru, personally; the family of the late Kaumbuthu shall not be liable to pay or assist him in payment of costs
- Jurisdiction invoked
- Original jurisdiction under section 38 of the Limitation of Actions Act (Cap 22) and Order XXXVI Rule 3 of the former Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peris Ndagara w/o Kaumbuthu (Deceased) & 3 others v Joseph Njiru s/o Mbogo & 5 others [2019] KEELC 4518 (KLR)", Case Analysis (2019). Embu ELC Case (originating summons dated 26 February 2008; earlier filed as Nairobi HCCC No. 1253 of 1975 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4518/eng@2019-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.