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ELCDismissedSuit number not stated in the judgment (ruling on Notice of Motion dated 14th June 2017)· [2020] KEELC 1978 (KLR)

Joseph Wanjohi Muriithi & 3 others v Peter Muthigani & 9 others [2020] KEELC 1978 (KLR)

Environment and Land Court
8 May 2020
ECE.C. Cherono
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to strike out a suit as res judicata because challenging a tribunal's jurisdiction was a new issue never decided before.

What this practically means

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Executive summary

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The 3rd to 10th defendants moved the court by Notice of Motion dated 14th June 2017, brought under Sections 1A, 1B, 3A and 7 of the Civil Procedure Act, seeking striking out of the plaintiffs' suit with costs on the ground that it was res judicata. They contended that the dispute had been determined by the Baricho Land Disputes Tribunal (LDT No. 5 of 2003/3 of 2008), whose award was adopted by the Magistrate's Court, with subsequent appeals at the Embu High Court (HCCA No. 27 of 2010) and ELCA No. 27 of 2014. The plaintiffs opposed, arguing the suit was declaratory, challenging the jurisdiction and legality of the Tribunal and the Magistrate's orders, and that the appeals had not been heard and determined. The 2nd defendant, Jane Njeri Muriithi, also opposed, noting that the plaintiffs were not parties to the earlier proceedings and that the issues differed. The court framed a single issue: whether the suit was res judicata. Reviewing Section 7 of the Civil Procedure Act and the history of the former proceedings, E.C. Cherono (ELC Judge) held that the current suit's claim - a declaration that the adoption of the Tribunal award was irregular, illegal, null and void, and a challenge to the Tribunal's jurisdiction - raised new matters never determined in the former suit. The application was dismissed with costs to the respondents, allowing the suit to proceed to hearing.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The application failed because the matters in issue in the present suit were not directly and substantially in issue in the former suit before the Baricho Land Disputes Tribunal

Reasoning

The court set out Section 7 of the Civil Procedure Act and compared the issues. The former proceedings before the Tribunal and the Magistrate's court concerned sub-division of parcel MWERUA/KANYOKORA/18 and cancellation of resulting titles. The present declaratory suit seeks a declaration that the orders adopting the Tribunal award were irregular, illegal, null and void, i.e. a challenge to the Tribunal's jurisdiction. That issue was never determined in the former suit, so res judicata does not apply.

p. 4

Legal principles established

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  • The doctrine of res judicata is an estoppel against a party who seeks to re-litigate an issue already litigated in a previous suit by a court of competent jurisdiction
  • A challenge to the jurisdiction of a tribunal that determined a former suit is a new matter that does not render a subsequent suit res judicata

Court orders

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  1. 1.The application dated 14th June 2017 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A, 1B, 3A
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application brought under Sections 1A, 1B, 3A and 7 of the Civil Procedure Act

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, "Joseph Wanjohi Muriithi & 3 others v Peter Muthigani & 9 others [2020] KEELC 1978 (KLR)", Case Analysis (2020). Suit number not stated in the judgment (ruling on Notice of Motion dated 14th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1978/eng@2020-05-08

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