James Kimathi Kibunja & another v Eunice Karimi Kibunja & another [2020] KEELC 1390 (KLR)
The bottom line
#A Meru court struck out a fresh land claim because the same family had already litigated the dispute; you cannot re-open a decided case with new plaintiffs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit is res judicata to Meru HCCC No. 126 of 1992 and Nyeri Civil Appeal No. 89 of 2009
- 2.Whether the court is functus officio and lacks jurisdiction to hear the matter
- 3.Whether the preliminary objection dated 13.11.2019 is a pure point of law with merits
Key legal issues
#Res judicata under Section 7 of the Civil Procedure Act
The suit is res judicata; the issue of entitlement to the land by adverse possession was litigated and determined in prior proceedings between the same family litigating under the same title
The 1st plaintiff's entitlement claim concerns land already the subject of Meru HCCC No. 126 of 1992 and Nyeri Civil Appeal No. 89 of 2009, culminating in parcel 4102. The 1st plaintiff, though not a party, was clearly aware of and funding the prior litigation; the brothers were jointly pursuing the same dispute. Section 7 bars the fresh claim.
Abuse of the court's process / scheme to defeat the Court of Appeal judgment
The suit was a scheme by the two brothers to scuttle the Court of Appeal judgment awarding 5 acres to the 1st defendant and was an abuse of process
The court found tell-tale signs that the brothers acted in concert; the 2nd defendant had failed in attempts to challenge the Court of Appeal decision, including at the Supreme Court, and the new suit by his brother was crafted to render the decree impotent.
Whether the preliminary objection raises a pure point of law
The objection succeeded on res judicata under Section 7 of the Civil Procedure Act
The court allowed the objection, holding the suit was barred, struck it out and discharged interim orders protecting the plaintiffs.
Legal principles established
#- Parties cannot evade res judicata by adding new parties or causes of action; they must litigate all claims at once
- The doctrine of res judicata has two dimensions: cause of action res judicata and issue res judicata
Court orders
#- 1.The preliminary objection dated 13.11.2019 is allowed
- 2.The suit is struck out with costs to the 1st defendant
- 3.Any orders of maintenance of status quo or restraining orders against the 1st defendant in respect of parcel Abothuguchi/Githongo/4102 or resultant parcels 4170-4177 are discharged
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; suit by Originating Summons claiming adverse possession
Relief refused
#Plaintiffs' claim to parcel 4102 by adverse possession allowed to proceed
Suit struck out as res judicata and an abuse of process; the issue of entitlement to the land by adverse possession was already determined
Costs
Costs to the 1st defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the preliminary objection dated 13/11/2019 is found to have merits and the same is allowed. This suit is hereby struck out with costs to the 1st defendant. Any orders of maintenance of status-quo or any orders restraining the 1st defendant from dealing with the suit parcel NO. ABOTHUGUCHI/GITHONGO/4102, or the resultant parcels NOS 4170, 4171, 4172, 4173, 4174, 4175, 4176 and 4177 are hereby discharged.
It is not fathomable that 1st plaintiff was not aware of the previous litigation. What is crystal clear is that this suit was filed in order to scuttle the Court of Appeal Judgment in Nyeri Civil Appeal no. 89 of 2009.
Parties cannot evade the doctrine of res judicata by merely adding other parties of causes of action in a subsequent suit. They are bound to bring all their case at once.
Thus the fact that the present petitioners were not parties in the previous suit is not a ground for them to institute this petition. I find that indeed this suit is an abuse of the court’s process
Issues in the judgment
#The judgment is labelled a 'Ruling' and delivered as such, but disposes of the entire suit; the analysis describes it as a ruling on a preliminary objection
The case number of the present suit is not stated on the face of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kimathi Kibunja & another v Eunice Karimi Kibunja & another [2020] KEELC 1390 (KLR)", Case Analysis (2020). Meru High Court Environment and Land Case (the suit over parcel Abothuguchi/Githongo/4102); ruling on Preliminary Objection dated 13.11.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1390/eng@2020-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.