Mary Wanjiku Mangara & 2 others (suing on their own behalf as well as trustees and officials of Nyakiambi Women Group) v Lonard Waweru Gichuhi & 5 others [2020] KEELC 778 (KLR)
The bottom line
#Kenya's Environment and Land Court in Nakuru struck out a land suit because the same dispute had already been settled by a 1999 consent order between the same parties.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is res judicata as the parties and issues were directly and substantially in issue in Nakuru HCC No. 113 of 1997 (O.S), which was concluded by a consent recorded on 12th October 1999.
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties or those litigating under the same title. The plaintiffs, trustees of the same group, sued the deceased's estate and beneficiaries over ownership of the same parcel arising from the same 1989 sale agreement. The consent of 12th October 1999 finally determined the former suit. The constructive trust and adverse possession claims fell within explanations 4 and 6 of Section 7 as matters that ought to have been raised.
Adverse possession dressed on an existing claim
The adverse possession claim was a cosmetic facelift to the old claim; possession under a sale agreement cannot be adverse to the vendor.
The plaintiffs occupy under the sale agreement of 8th December 1989 which they still seek to enforce, so their possession cannot be adverse to the vendor. The court warned against attempts to repackage concluded claims, citing E.T. v Attorney General and Muchanga Investments Ltd.
Striking out as a remedy
Striking out is draconian and must be used sparingly, but a suit that flouts res judicata must be struck out.
The court acknowledged the draconian nature of striking out but held that a res judicata suit cannot be remedied in any other way. It also directed the plaintiffs to pursue actualization of the consent orders in the 1997 file, noting that a missing file is not an excuse for filing a fresh case.
Limitation of actions
Not determined, as the res judicata finding disposed of the application.
The court elected to determine res judicata first, holding that if the suit was res judicata there would be no need to consider limitation. The limitation ground was therefore never adjudicated on the merits.
Legal principles established
#- A consent that concludes a suit operates as a final determination of the suit together with the issues in it.
- Possession held pursuant to a sale agreement cannot be adverse to the vendor.
- A suit flouting the doctrine of res judicata must be struck out.
Court orders
#- 1.Suit struck out for being res judicata
- 2.Costs of the suit awarded to the 1st to 5th defendants
- 3.No costs awarded to the 6th defendant as he did not participate in the proceedings
- 4.1st to 3rd defendants awarded costs of the Notice of Motion dated 5th May 2020
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over title, use and occupation of land (court noted: 'the court with jurisdiction on matters of the use and occupation of land as well as title to land is this court'); application under Order 2 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wanjiku Mangara & 2 others (suing on their own behalf as well as trustees and officials of Nyakiambi Women Group) v Lonard Waweru Gichuhi & 5 others [2020] KEELC 778 (KLR)", Case Analysis (2020). Not stated in extract (Nakuru ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/778/eng@2020-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.