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ELCDismissedMeru ELC Case (application dated 4/2/2020; Preliminary Objection dated 15/1/2020)· [2020] KEELC 118 (KLR)

Julius Kathurima M’Igweta v Charles Gikundi [2020] KEELC 118 (KLR)

Environment and Land Court
18 November 2020
LMLucy N. Mbugua
1,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a land case dismissed for delayed prosecution can be filed again, but late attempts to move disputes between courts will be punished.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Meru, delivered by Lucy N. Mbugua, ELC Judge, determined two interlocutory matters: the plaintiff's application dated 4/2/2020 and the defendant's preliminary objection dated 15/1/2020. The plaintiff, a defendant in Meru CM ELC Case No. 204 of 2018 where he faces eviction and has counterclaimed for adverse possession over 0.24 ha of LR No. Nyaki/Mulathankari/635, sought consolidation of that suit with this one, or alternatively its stay, contending that the magistrates' court lacks jurisdiction over adverse possession claims. The defendant objected that this suit was res judicata, having been preceded by Meru HCCC (OS) No. 152 of 2009, dismissed on 15/2/2012 for want of prosecution. The court framed two issues: whether the suit is res judicata, and whether the 2018 suit should be consolidated. Relying on Section 7 of the Civil Procedure Act and the authorities of Michael Bett Sibor v Jackson Koech and Cosmas Mrombo Moka, the court held that a dismissal for want of prosecution is a technical knockout that does not amount to a determination on the merits, so the plea of res judicata failed; the preliminary objection was dismissed with no orders as to costs. On consolidation, the court found the plaintiff had filed this suit only after the respondent's case in the partly heard magistrate's court suit had closed, concluding he was out to steal a match and had not approached the court with clean hands; the application was dismissed as an abuse of process with costs to the respondent.

Key legal issues

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01

Whether the suit is res judicata by virtue of Meru HCCC (OS) No. 152 of 2009

Holding

No. The earlier suit was dismissed for want of prosecution as against the current respondent and was therefore not heard and finally decided on the merits; the plea of res judicata does not apply and the preliminary objection fails.

Reasoning

Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue in the former suit between the same parties was heard and finally decided by a competent court. Relying on the Michael Bett Sibor and Cosmas Mrombo Moka authorities, the court held that a dismissal for want of prosecution is a technical knockout that does not amount to a determination on the merits, so res judicata cannot be sustained.

p. 2
02

Whether Meru CM ELC Case No. 204 of 2018 should be consolidated with this suit or stayed

Holding

No. The application was dismissed as an abuse of the court's process, the plaintiff having waited until the defence stage of the partly heard magistrate's court suit before filing this suit.

Reasoning

The respondent's suit for eviction was ongoing in the magistrates' court with the plaintiff's counterclaim for adverse possession raised therein, and the respondent's case had closed. The court found the plaintiff sat pretty and filed this suit at the defence-hearing stage, concluding he was out to steal a match and had not approached the court with clean hands; hence the application lacked merit and was dismissed with costs.

p. 2

Legal principles established

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  • A dismissal for want of prosecution is a technical knockout and does not satisfy the requirements of Section 7 of the Civil Procedure Act for a plea of res judicata, as the issues were not heard and finally decided on the merits
  • A subordinate court lacks jurisdiction to determine a claim for adverse possession

Court orders

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  1. 1.The preliminary objection dated 15/1/2020 is dismissed with no orders as to costs
  2. 2.The application dated 4/2/2020 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 11 rule 3(1)(h)
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Cosmas Mrombo Moka v. Co-operative Bank Limited & Another
    (2018) eKLR
  • MICHAEL BETT SIBOR .V. JACKSON KOECH
    C.A CIVIL APPEAL NO 83 OF 2016 [2019 eKLR]
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court (original jurisdiction over land disputes); motion brought under Order 11 rule 3(1)(h) of the Civil Procedure Rules and Section 6 of the Civil Procedure Act

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, "Julius Kathurima M’Igweta v Charles Gikundi [2020] KEELC 118 (KLR)", Case Analysis (2020). Meru ELC Case (application dated 4/2/2020; Preliminary Objection dated 15/1/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/118/eng@2020-11-18

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