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ELCStruck OutNot stated in the judgment as provided· [2020] KEELC 2280 (KLR)

Sammy K. Samich v Abraham K. Kiptanui & another; Victor Kimitai Matelong (Proposed Interested Party) [2020] KEELC 2280 (KLR)

Environment and Land Court
14 May 2020
4,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a 2019 land suit because it merely re-litigated a dispute already decided in 2000, adding a new party to disguise it.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Eldoret, delivered by M. A. Odeny J on 14th May 2020, dealt with three applications arising in a land dispute over LR Plot No. 133 Baharini Settlement Scheme: the 1st defendant's application of 4th February 2020 to set aside ex parte orders of 3rd December 2019 and be allowed to respond to the plaintiff's application; the proposed interested party Victor Kimutai Matelong's application of 7th January 2020 seeking to be enjoined and to have the ex parte orders set aside; and the 1st defendant's preliminary objection that the suit was res judicata and time-barred. The plaintiff opposed the joinder, arguing the interested party had no locus standi, and opposed the preliminary objection, arguing the earlier ruling in Nakuru HCCC No. 537 of 2000 was interlocutory, not a final judgment, and that limitation had not been pleaded. The court enumerated the four ingredients of res judicata, found the current suit replicated the earlier suit between the same parties and over the same land, that the earlier suit was heard inter partes and struck out with a decree issued that was never appealed, and that the addition of a second defendant could not circumvent the doctrine. Upholding the preliminary objection, the court struck out the suit with costs to the 1st defendant, holding that joinder of an interested party to a non-existent suit and setting aside of ex parte orders were unnecessary.

Key legal issues

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01

Whether the suit is res judicata

Holding

The preliminary objection on res judicata was upheld; the suit is substantially similar to Nakuru HCCC No. 537 of 2000, between the same parties litigating over the same land, which was struck out with costs, a decree issued and never appealed.

Reasoning

The court compared the plaint, defence, ruling of 23rd March 2001 and decree of 25th January 2005 in HCCC No. 537 of 2000 with the current suit, finding identical claims over LR Plot No. 133 Baharini Settlement Scheme. The plaintiff is the legal representative of the estate of the original plaintiff, and the added 2nd defendant does not change the parties. The inter partes hearing and issuance of a decree meant the earlier suit received a final determination. Re-litigating 19 years later, without appeal, is an abuse of process.

p. 6
02

Whether the interested party should be joined and ex parte orders set aside

Holding

Both applications were rendered unnecessary by the striking out of the suit.

Reasoning

Because the court found the suit res judicata, it declined to consider joinder or setting aside of the ex parte orders, holding there is no suit in which an interested party could be joined, and that the interested party, if he has a claim, knows what to do.

p. 5
03

Limitation of actions objection

Holding

Not separately determined; subsumed within the res judicata finding.

Reasoning

The 1st defendant also argued the suit was time-barred under section 7 of the Limitation of Actions Act and relied on Order 2 Rule 15. The plaintiff countered that limitation must be pleaded in a defence, which the 1st defendant had not filed. The court did not rule on limitation, instead striking out the suit on res judicata.

p. 5

Legal principles established

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  • The four essential ingredients of res judicata are: previous litigation with identical claims or claims that could have been raised; same parties; a court with jurisdiction; and a final judgment on the merits.
  • Introduction of a new party does not circumvent the doctrine of res judicata.
  • Litigation must come to an end; re-litigating a claim that was heard and determined, long after without appeal, amounts to abuse of court process.

Court orders

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  1. 1.Preliminary objection on the ground of res judicata upheld
  2. 2.Suit struck out with costs to the 1st defendant

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Limitation of Actions Actsection 7
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 2 Rule 15(1)

Cases cited (22)

  • Pastor Antony Makena Chege vs Nancy Wamaitha Magak and another
    (2015) eKLR
  • Julius Gatoto Maina v Johnson Gaitho Wanjohi & 3 others
    [2018] eKLR
  • Robert Githua Thuku v William Ole Nabala & 9 others
    [2018] eKLR
  • Attorney General vs. Kenya Bureau of Standards & Another
    [2018] eKLR
  • Alfred Njau & 5 others v. City Council of Nairobi
    [1983] eKLR
  • DSV Silo vs the Owners of Sennar
    (1985) 2 All ER 104
  • Bernard Mugi Ndegwa vs James Nderitu Githae & 2 others
    (2010) eKLR
  • Henderson vs Henderson
    (1843) 67 ER 313
  • Attorney General & another ET
    (2012) eKLR
  • Omondi s NBK & Others
    (2001) EA 177
  • Njanju vs Wambugu and another, Nairobi HCC No. 2340 of 1991
    unreported
  • Joseph Ndung'u Njoroge v Lilian Atieno Siwolo
    [2015] eKLR
  • Philes Nyokabi Kamau v Industrial & Commercial Development Corporation
    [2017] eKLR
  • Lulu Drycleaners Ltd & another v Kenya Industrial Estates & another
    [2005] eKLR
  • Achola & Another v. Hongo & Another
    [2004] 1 KLR 462
  • Uhuru Highway Development Limited
  • Yat Tung Investment Co. Ltd. Vs Dao Heng Bank Ltd.
    (1975) AC 581
  • Nancy Mwangi T/A Worthlin Marketers v Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 others
    [2014] eKLR
  • Kamunye & others v Pioneer General Assurance Society Ltd
    [1971] E.A. 263
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Kivanga Estates v. National Bank of Kenya, CA No 217 of 2015
  • Nakuru HCCC No. 537 of 2000 Hon. Ayub Chepkwony vs Abraham Kiptanui
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (statutory basis not expressly invoked in the judgment as provided)

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, "Sammy K. Samich v Abraham K. Kiptanui & another; Victor Kimitai Matelong (Proposed Interested Party) [2020] KEELC 2280 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2280/eng@2020-05-14

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