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ELCPartially AllowedMalindi ELC Case (not specified in judgment extract)· [2020] KEELC 1769 (KLR)

Martha Wangui Muriithi v Limuru Hills Limited & 7 others [2020] KEELC 1769 (KLR)

Environment and Land Court
10 July 2020
5,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The court barred a landowner from suing her lender twice over the same charge dispute, showing Kenyan courts will strike repeat cases as res judicata.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (Olola J) determined three interlocutory applications arising from a dispute over House Nos. 3 and 5 on LR No. 350/III/MN, Kilifi. The Plaintiff, administratrix of the Estate of Ishmael Elijah Muriithi, sought a temporary injunction restraining the Defendants from trespassing on, advertising or offering for sale the two houses, claiming she was their beneficial owner under sale agreements of 2013 and that a constructive trust for sale arose in her favour. She also alleged that Taibjee & Bhalla Advocates (5th Defendant) negligently failed to exclude the two houses from a charge in favour of ASL Credit Ltd (6th Defendant), rendering them liable to sale. The 6th, 7th and 8th Defendants applied to set aside the ex-parte injunction and dismiss the suit against them as res judicata, the Plaintiff having been enjoined as an Interested Party in Malindi ELC No. 218 of 2017 (PJ Dave Flowers Ltd v ASL Credit Ltd & 2 Others), where an injunction against the same statutory power of sale was refused on 18th July 2019. The Plaintiff raised a preliminary objection attacking the Defendants' motion as an omnibus application. The Court rejected the preliminary objection as involving factual inquiries, and held the suit against the 6th, 7th and 8th Defendants res judicata, applying Mukisa Biscuits, Pop-in (Kenya) Ltd v Habib Bank and John Florence Maritime Services. The Plaintiff's application and suit against those Defendants were dismissed with costs, and she was ordered to bear the costs of the aborted auction of 19th August 2019. The suit against the remaining Defendants was not before the Court.

Key legal issues

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01

Whether the Plaintiff's Preliminary Objection against the omnibus Amended Motion was sustainable

Holding

The preliminary objection failed because it invited the Court to ascertain contested facts rather than decide a pure point of law

Reasoning

Applying Mukisa Biscuits, the Court held a valid preliminary objection must be a pure point of law that could dispose of the matter. The Plaintiff's objection attacked the motion as omnibus and defective, but the parties disagreed on facts and the Court was being invited to make factual inquiries, which is improper for a preliminary objection and a misuse of judicial time.

p. 4
02

Whether the Plaintiff's suit against the 6th, 7th and 8th Defendants was res judicata

Holding

Yes - the suit as against those Defendants was res judicata

Reasoning

The Plaintiff had been enjoined as an Interested Party in Malindi ELC No. 218 of 2017, swore a supporting affidavit raising the very same complaints (failure to exclude her two houses from the charge and from the statutory power of sale, and want of notice), and the Court in that suit dismissed the injunction and allowed the sale. Although an interested party is not a primary party, the same issues could not be reopened by separate litigation under Section 7 of the Civil Procedure Act and the Henderson v Henderson extension of res judicata.

p. 6
03

Whether the Plaintiff's application dated 7th August 2019 for a temporary injunction could stand

Holding

The application was dismissed with costs as it could not survive the res judicata finding as against the 6th-8th Defendants

Reasoning

The Court found merit in the Defendants' Amended Motion which sought dismissal of the Plaintiff's application and suit against them. Having found the matter res judicata, the injunction application pending determination of the suit against those Defendants fell with it.

p. 7

Legal principles established

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  • For a preliminary objection to succeed it must be confined to a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • A party who was enjoined as an interested party in earlier proceedings and who could have raised the issues then cannot relitigate the same issues in a subsequent suit; res judicata extends to every point which properly belonged to the subject of the earlier litigation
  • The rationale of res judicata is the public interest that there be an end to litigation and protection of parties from repetitive litigation

Court orders

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  1. 1.The Plaintiff's application dated 7th August 2019 and the suit as against the 6th, 7th and 8th Defendants is dismissed with costs
  2. 2.The costs of the aborted auction that was scheduled to be held on 19th August 2019 shall be borne by the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 2 Rule 15(1)(a) and (d), Order 2 Rule 15(2)
  • Civil Procedure RulesOrder 40 Rule 7
  • Constitution of KenyaArticle 163(7) (as quoted within the Supreme Court decision cited)

Cases cited (8)

  • Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd
    (1969) EA 696
  • Methodist Church in Kenya v Mohamed Fugicha & 3 Others
    (2019) eKLR
  • Francis Karioki Muruatetu & Another v Republic & 5 Others
    Supreme Court Petition 15 & 16 of 2015 (consolidated); (2016) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    Civil Appeal No. 290 of 2012
  • Pop-in (Kenya) Ltd & 3 Others v Habib Bank A.G. Zurich
    (1990) eKLR
  • Henderson v Henderson
    (1843) Have 100, 115
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • PJ Dave Flowers Ltd v ASL Credit Ltd & 2 Others (Malindi ELC No. 218 of 2017)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly stated in the judgment)

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, "Martha Wangui Muriithi v Limuru Hills Limited & 7 others [2020] KEELC 1769 (KLR)", Case Analysis (2020). Malindi ELC Case (not specified in judgment extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1769/eng@2020-07-10

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