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ELCStruck OutNot stated in the judgment (Notice of Motion dated 7th May 2020)· [2020] KEELC 1591 (KLR)

Winfred Esther Wangari Mutugi v Margaret Wangechi Kahoya & another [2020] KEELC 1591 (KLR)

Environment and Land Court
10 July 2020
ECE.C. Cherono
2,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kerugoya struck out a land claim because the same dispute had already been decided, warning against re-litigating settled matters.

What this practically means

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Executive summary

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The plaintiff, Winfred Esther Wangari Mutugi, moved the Court by Notice of Motion dated 7th May 2020 seeking inhibition orders against title to L.R. No. MWERUA/KAGIO/2041 and its resultant sub-divisions pending determination of her suit, in which she claimed the land was held in trust for her late father's family. She relied on a Land Disputes Tribunal award adopted by Baricho Court in LDT No. 8 of 2007, which was subsequently set aside in ELCA No. 7 of 2017 (Kerugoya) on 30th April 2020 for want of tribunal jurisdiction. The respondents filed a replying affidavit and a Notice of Preliminary Objection dated 21st May 2020 raising res judicata and lack of jurisdiction, contending that the suit property was distributed in Succession Cause No. 53 of 2000 (Kerugoya), whose grant was confirmed on 9th January 2001, and that the ownership issue was determined in ELCA No. 7 of 2017. The Court applied Section 7 of the Civil Procedure Act, the IEBC v Maina Kiai res judicata elements, and Henderson v Henderson, holding that the ownership issue was directly and substantially in issue and finally determined in the former suit between the same parties, and that the plaintiff could not litigate in instalments. It further held that it lacked jurisdiction because the suit property had been dealt with in a concluded succession cause, distinguishing the Embu High Court decision relied on by the plaintiff as a concurrent-jurisdiction authority. The preliminary objection was upheld; the suit was declared a nullity, struck out with costs, and the Notice of Motion was dismissed with costs to the respondents.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata as ownership of the suit property was directly and substantially in issue in ELCA No. 7 of 2017 between the same parties and was heard and finally determined

Reasoning

The plaintiff was respondent in ELCA No. 7 of 2017 where ownership of the suit property was in issue and was determined. She raised no cross-appeal on trust and cannot bring issues in instalments. All five conjunctive elements of res judicata under Section 7 CPA were satisfied.

p. 3
02

Jurisdiction over matters determined in a succession cause

Holding

The Court lacks jurisdiction because the suit property was distributed in Succession Cause No. 53 of 2000, which was heard and finally determined upon confirmation of the grant

Reasoning

The suit land was a subject of a confirmed succession cause in which the plaintiff was a beneficiary. Following Judith Gathoni Willy, any claim should have been lodged in the existing succession cause. The Land Disputes Tribunal award, adopted by Baricho Court, was itself a nullity for want of jurisdiction and was set aside in ELCA No. 7 of 2017.

p. 3

Legal principles established

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  • A court must determine its jurisdiction before taking further proceedings once it is raised
  • Section 7 CPA bars re-litigation of issues directly and substantially in issue in a former suit between the same parties heard and finally decided by a competent court
  • Parties must bring forward their whole case; issues that could have been raised in a former suit cannot be raised in instalments in subsequent suits
  • A Land Disputes Tribunal lacks jurisdiction over issues already heard and determined by a Succession Court

Court orders

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  1. 1.The Notice of Preliminary Objection dated 21st May 2020 is upheld
  2. 2.The suit and the proceedings herein are declared a nullity and struck out with costs
  3. 3.The Notice of Motion dated 7th May 2020 is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (5)

  • OWNERS OF THE VESSEL 'LILLIAN S' VS CALTEX OIL (KENYA) LTD
    (1989) K.L.R 1
  • HENDERSON VS HENDERSON
    (1843 – 60) All E.R 378
  • THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION VS MAINA KIAI & 5 OTHERS
    C.A. CIVIL APPLICATION NO. 105 OF 2017 (NAIROBI) (2017) e.K.L.R
  • JUDITH GATHONI WILLY VS GEORGE KIHARA MUCHUKI & 2 OTHERS
    CIVIL APPEAL No. 277 of 2004 (2010) e.K.L.R
  • High Court Case No. 101 of 2006 (Embu) (decision by Justice Karanja)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the ELC Act; suit struck out on preliminary objection under Section 7 of the Civil Procedure Act (Cap 21)

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, "Winfred Esther Wangari Mutugi v Margaret Wangechi Kahoya & another [2020] KEELC 1591 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 7th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1591/eng@2020-07-10

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