Stephen N Mwagiru v Chief Land Registrar & 4 others; Rosemary W Njau & 2 others(Interested Parties) [2020] KEELC 2009 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a Tatu City caveats petition, ruling the registrar followed due process and the case abused court process.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
The Petition is not res judicata because no prior suit on the same issues was heard and finally determined; several prior matters were withdrawn before determination.
Applying Section 7 of the Civil Procedure Act, the court held that res judicata requires the matter to have been heard and finally decided by a competent court. Although various suits existed between the same parties, the respondents acknowledged that the Petitioner or 1st Interested Party withdrew matters before hearing; there was no evidence any prior suit on the removal of the caveats was finally determined.
Whether the suit is an abuse of the Court process
The Petition is an abuse of court process: the Petitioner filed and withdrew multiple suits, notably withdrawing Petition 5 of 2018 and immediately filing the instant suit, wasting judicial time and vexing the respondents.
Guided by Muchanga Investments on the meaning of abuse of process and the inherent jurisdiction described in Takwenyi (as cited in Nancy Musili), the court found a pattern of filing multiplicity of actions between the same parties on the same cause of action. The Petitioner's withdrawal of Petition 5 of 2018 followed by the instant suit, and an attempted withdrawal of the instant suit only barred by a Ruling dated 21st June 2019, showed no intention to litigate to the end.
Whether the Petition is merited
The Petition is not merited: due process, including the statutory 45 days' notice, was followed in removing the caveats, and the cavetees were afforded natural justice.
The caveators had listed P.O Box 55 Ruiru as their address, and a letter from the Postmaster General dated 4th October 2018 (annexture CB 13) confirmed the notice was dispatched to Ruiru Post Office on 11th July 2012 and returned unclaimed. The registrar acted upon an application for removal, gave the 45 days' notice, and removed the caveats when no objection was received. Though the letter was apparently never received, the registrar followed the laid-down procedure and the cavetees bore the consequences of the address they supplied.
Legal principles established
#- For res judicata under Section 7 of the Civil Procedure Act, the prior matter must have been heard and finally determined by a court of competent jurisdiction on the same issues between the same parties
- A court has inherent jurisdiction to stop proceedings that abuse its process, including where a party repeatedly files and withdraws suits
- A land registrar who follows the statutory 45-day notice procedure in removing a caveat cannot be faulted for non-receipt of the notice at the address supplied by the cavetee
Court orders
#- 1.Dismissal of the Petition dated 18th June 2018 entirely
- 2.Costs of the Petition awarded to the Respondent
- Jurisdiction invoked
- Original constitutional petition jurisdiction - alleged breaches of Articles 10, 27, 28, 35, 40, 43, 47, 48, 50, 73 and 232 of the Constitution (no specific provision pleaded in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen N Mwagiru v Chief Land Registrar & 4 others; Rosemary W Njau & 2 others(Interested Parties) [2020] KEELC 2009 (KLR)", Case Analysis (2020). Petition dated 18th June 2018 (number not stated in judgment; a prior Petition 5 of 2018 was withdrawn). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2009/eng@2020-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.