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ELCStruck OutELCC Suit (formerly Nairobi HCCC No. 430 of 1981-related suit filed 3rd April 2008; amended plaint dated 3rd April 2008)· [2020] KEELC 463 (KLR)

Cecilia Situmai Ndeti & another v Esther Ngondu Ndeti & 6 others [2020] KEELC 463 (KLR)

Environment and Land Court

26 November 2020

SOS. Okong'o

3,171 words in judgment

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The bottom line

A Kenyan court struck out a landowner's second lawsuit over family property already decided in an earlier case, warning that issues must be raised the first time.

What this practically means

Executive summary

This Environment and Land Court decision at Nairobi, delivered by S. Okong'o J on 26th November 2020, determined a Notice of Motion dated 9th October 2017 by the defendants seeking the striking out of a suit filed by Professor Kivuto Ndeti on 3rd April 2008. The dispute concerns L.R No. 7149/9 (I.R No. 18728), a roughly 100-acre parcel, over which the Ndeti family has litigated since the 1980s. The Professor claimed he was the absolute registered proprietor, that P. N. Ndeti & Bros. had only been allowed to erect a house for Patrick, and that after Patrick's death the defendants became trespassers. He sought a mandatory injunction, eviction and a declaration that his title was indefeasible. The defendants contended the property was family property held by the Professor in trust for the Ndeti family through P. N. Ndeti & Brothers Ltd., and that the suit was res judicata given the first suit, Nairobi HCCC No. 430 of 1981, in which an elders' award in Patrick's favour was adopted as judgment on 26th/27th July 2017. An earlier ruling of 28th September 2012 had stayed this suit pending determination of the first suit, observing that the Professor should have counterclaimed. The court agreed that the issues of ownership and trespass had been laid to rest in the first suit, that nothing remained to be tried, and that the fresh suit was an abuse of process. The suit was struck out with each party bearing its own costs.

Key legal issues

Whether the present suit was res judicata and an abuse of the process of the court following the determination of the first suit (HCCC No. 430 of 1981) and the adoption of the elders' award as a judgment of the court

Holding

Yes. The ownership of the suit property and the defendants' interests through P. N. Ndeti & Brothers Ltd. were conclusively determined in the first suit; nothing remained to be tried and the suit was struck out.

Reasoning

The court noted it was not disputed that the first suit concerned whether the Professor owned the suit property absolutely or held it in trust for the Ndeti family through P. N. Ndeti & Brothers Ltd., and that the decree of 20th September 2017 found the company had contributed Kshs.20,000/= towards the purchase price of Kshs.60,000/=. The defendants claim through the same company. The Professor, having been the defendant in the first suit, ought to have raised his trespass claim by counterclaim. Re-litigating those issues in a fresh suit was an abuse of process. The parties were directed to concentrate on implementing the decree in the first suit.

p. 3

Whether the decree in the first suit binds the defendants in the present suit

Holding

Yes. The defendants are survivors or successors of the family members through whom the claim in the first suit was made, and claim through P. N. Ndeti & Brothers Ltd., whose interests were protected by the decree.

Reasoning

The court traced the parties: Patrick was plaintiff in the first suit and obtained a decree; the 1st defendants are his legal representatives; the other defendants are survivors/successors of Mutheke Mutua Ndeti and Julius Kiilu Ndeti, who were partners and shareholders in the family businesses. The decree in the first suit, which has neither been varied nor set aside, found that the company contributed to the purchase price and that its shareholders had interests in the property. The defendants therefore claim through the same interests protected by the decree.

p. 3

Legal principles established

A defendant in an earlier suit over the same subject matter who failed to counterclaim cannot bring a fresh suit over the same issues; such a suit is res judicata and an abuse of the process of court.

Court orders

1.The plaintiffs' suit is struck out
2.Each party to bear its own costs of the suit

Authorities

Legislation

Civil Procedure Act, Chapter 21 Laws of Kenyasections 1A, 1B and 3A
Registration of Titles ActSection 23

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court (first suit transferred from the High Court and registered as ELCC Suit No. 55 of 2015); application under sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Cecilia Situmai Ndeti & another v Esther Ngondu Ndeti & 6 others [2020] KEELC 463 (KLR)", Case Analysis (2020). ELCC Suit (formerly Nairobi HCCC No. 430 of 1981-related suit filed 3rd April 2008; amended plaint dated 3rd April 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/463/eng@2020-11-26

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