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ELCDismissedE.L.C. Case No. 332 of 2015 (O.S.)· [2020] KEELC 2037 (KLR)

Alex Tonny Gitonga Njeru & 19 others v County Government of Embu; Ndwiga Wainaina & 11 others (Interested Parties) [2020] KEELC 2037 (KLR)

Environment and Land Court
5 May 2020
YAY.M. Angima
7,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~31 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Embu dismissed a family's fresh land claim as res judicata, confirming an earlier ruling on who the rightful beneficiaries are.

What this practically means

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Executive summary

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By an originating summons dated 7th October 2015 under Order 37 Rule 6 of the Civil Procedure Rules, twenty Applicants, members of the Karukenya family of the Muthiga clan, sought a declaration that the County Government of Embu held Title No. Gaturi/Nembure/3072 in trust for the clan, termination of that trust, and transfer of the property to themselves. The Applicants and the Respondent had earlier recorded a consent judgement transferring the land, but in a ruling dated 9th June 2016 Hon. Justice B.N. Olao admitted the Wainaina family as Interested Parties and set aside the consent for collusion, while declining to strike out the suit as res judicata. At trial before Y.M. Angima J, the Applicants called three witnesses whose evidence on the purchase of the land by two cows was held to be hearsay; the Respondent called no evidence; Ndwiga Wainaina testified for the Interested Parties. The court framed four issues and held the suit res judicata, scandalous and an abuse of process: the Karukenya family had pleaded and participated in the Nyeri suit (Nyeri HCCC No. 201 of 2000, later Nyeri ELC No. 700 of 2014), in which the Committee's award in favour of the Wainaina family was adopted as a judgement - a judgement in rem on the trust. The court held that allegations of corruptly obtained judgements had to be pleaded and proved, that limitation of the Nyeri decree was a matter for the executing court, and that the Respondent indeed held the land in trust for Muthiga clan but the rightful beneficiaries, as determined in the Nyeri suit, were the Wainaina family. The originating summons was dismissed in its entirety with costs to the Interested Parties only; the Respondent received no costs for colluding with the Applicants.

Key legal issues

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01

Res judicata and abuse of court process

Holding

The suit is res judicata and an abuse of process; the same trust and beneficiary issues were conclusively determined in the Nyeri suit

Reasoning

The Applicants' Karukenya family members pleaded the Nyeri suit in Embu HCCC No. 14 of 2004 and testified before the Committee whose award was adopted as judgement in the Nyeri suit. Embu HCCC No. 14 of 2004 was struck out as res judicata, so every subsequent suit raising the same matters is equally res judicata. The Applicants were aware of the Nyeri suit and should have sought joinder rather than file afresh. The Nyeri judgement was a judgement in rem on the trust.

p. 7
02

Whether the Respondent holds the suit property in trust

Holding

The Respondent holds the suit property in trust for Muthiga clan, but the rightful beneficiaries are the Wainaina family, as determined in the Nyeri suit

Reasoning

The Respondent conceded trusteeship in its replying affidavit. The beneficiaries were determined by the Provincial Land Disputes Appeals Committee after hearing both families and the clan chairman, and the award was adopted as a High Court judgement. No party objected to the Committee's jurisdiction, and the 1943 African Court judgements were time-barred and unproven to have been redeemed.

p. 8
03

Whether the Nyeri decree was a nullity or statute-barred

Holding

The decree is not a nullity before this court; limitation of a decree is for the executing court and does not cure abuse of process

Reasoning

There was no application before the court for execution of the Nyeri decree, so Section 4(4) of the Limitation of Actions Act was not engaged. Even if time-barred, allowing revival of conclusively determined matters after 12 years would permit endless litigation.

p. 7
04

Evidentiary value of the NLC letter and the Applicants' testimony

Holding

The NLC letter was a referral request, not a determination; the oral evidence of PW2 and PW3 was hearsay

Reasoning

The NLC letter merely requested referral of the dispute to the Commission for arbitration and investigation of historical injustices and conveyed no determination under Article 67 of the Constitution. PW2 and PW3 relied on what they had heard about the two-cows purchase, and PW3 conceded he was very young at the material time.

p. 8

Legal principles established

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  • Where a suit has been held res judicata by reason of a former suit, every subsequent suit raising the same matters by parties claiming under the same title is also res judicata; a judgement on trust declaring rights binds in rem
  • A matter conclusively determined by a competent court cannot be revived for fresh litigation after the passage of 12 years; statute-barredness of a decree is for the executing court
  • A party omitted from a suit must diligently seek joinder in that suit rather than file a fresh suit; allegations of corrupt influence of judicial decisions must be specifically pleaded and proved
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

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  1. 1.The Applicants' originating summons dated 7th October 2015 is dismissed in its entirety
  2. 2.The Applicants shall pay the costs of the Interested Parties
  3. 3.The Respondent is not awarded any costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 6
  • Civil Procedure RulesOrder 17 Rule 1
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 27 (proviso)
  • Limitation of Actions ActSection 4(4)
  • Constitution of KenyaArticle 67
  • National Land Commission Act

Cases cited (9)

  • Babu A (suing through the mother EA) & Another V AG & 6 Others
    [2014] eKLR
  • M'Ikiara M'rinkanya & Another V Gilbert Kabeere M'Mmbijewe
    [2007] eKLR
  • National Bank of Kenya Ltd V Devji Bhimji Sanghani & Another
    [2016] eKLR
  • Hussein Janmohamed & Sons V Twentsche Overseas Trading Co. Ltd
    [1967] E.A. 287
  • Nembure African Court Civil Case No. 241/1943 Kariuki Gachiati V Karukenya Kariungi
  • DC's Appeal Civil Case No. 14/1943 (also referred to as Appeal Civil Case No. 16 of 1943 and Civil Appeal No. 42 of 1943)
  • Nairobi HCCC No. 1369 of 1970 John Martin Karukenya & Another V Ndwiga Wainaina & 15 Others
  • Nyeri HCCC No. 201 of 2000 (O.S.) Ndwiga Wainaina & 11 Others V Embu County Council, later Nyeri ELC No. 700 of 2014
  • Embu HCCC No. 14 of 2004 Victor Njagi, Bonifasio Njeru Karukenya & Bonaventure Njagi Karukenya Vs Ndwiga Wainaina & 12 Others
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution; originating summons under Order 37 Rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alex Tonny Gitonga Njeru & 19 others v County Government of Embu; Ndwiga Wainaina & 11 others (Interested Parties) [2020] KEELC 2037 (KLR)", Case Analysis (2020). E.L.C. Case No. 332 of 2015 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2037/eng@2020-05-05

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