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ELCPartially AllowedOriginating Summons dated 24th April 2019 (ELC, Thika)· [2020] KEELC 2465 (KLR)

Onesmus Ngige Munyambu & another v Kenwood Property Developers & another [2020] KEELC 2465 (KLR)

Environment and Land Court
14 May 2020
4,608 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court consolidated two property disputes and ruled buyers' ownership and discharge claims must wait until full trial.

What this practically means

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Executive summary

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The Applicants, purchasers of Villa No. 1 and Villa No. 6 of Kenwood Villas developed on LR No. 8361/3 and 8361/4, filed an Originating Summons dated 24th April 2019 seeking consolidation of their suit with Thika ELC No. 15 of 2017 (a dispute between the developer and its chargee bank over the same parent title), adoption of the 2nd Respondent's Replying Affidavit as formal reply, partial discharge of their villas from the charge, declaration of ownership, a permanent injunction against sale or transfer, and completion of construction. The 1st Respondent developer opposed consolidation, arguing the suits raised dissimilar issues, ELC 15 of 2017 was far advanced, and the suit offended Sections 6 and 7 of the Civil Procedure Act. The 2nd Respondent bank contended the suit was res judicata, that it was not privy to the Applicants' purchase agreements, and that discharge was misconceived. The court held the suit was not res judicata since the earlier Originating Summons was never heard and determined on the merits. Applying the Nyati Security Guards principles, it found common questions of law and fact over the same suit property and ordered consolidation with ELC No. 15 of 2017, adopting the Respondents' responses as formal replies. The substantive prayers for discharge, declaration of ownership and injunction were deferred to the main trial. The Originating Summons was allowed in terms of prayers 1 and 3 only, with costs in the cause.

Key legal issues

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01

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

Holding

It is not res judicata because the prior Originating Summons in ELC 15 of 2017 was never heard and determined to finality

Reasoning

Section 7 requires that the matter in issue in the former suit has been heard and finally decided. The Applicants' earlier Originating Summons filed within ELC No. 15 of 2017 was dismissed without a hearing on the merits, so no final determination on the same issues exists to ground the plea.

p. 4
02

Whether the two suits ought to be consolidated

Holding

Yes - the parties, subject property and issues are the same, and consolidation serves judicial economy despite the progress of ELC 15 of 2017

Reasoning

The court applied the Nyati Security Guards criteria: common questions of law or fact, rights arising out of the same transaction, and desirability. Since all parties claim entitlement over the same suit property, and discharge cannot be ordered without determining entitlement, consolidation was appropriate to avoid a repeat of issues and delay.

p. 5
03

Whether the Applicants are entitled to discharge of their villas, declaration of ownership and a permanent injunction

Holding

Not at this stage; these prayers are deferred to the main trial after evidence is called

Reasoning

The court found it impossible to grant discharge orders without first determining who is entitled to the suit property, since the 2nd Respondent claims a crystallised statutory power of sale and legal interest. Ownership, discharge and injunctive reliefs are substantive claims that require full trial.

p. 5

Legal principles established

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  • A suit is only res judicata where the former suit was heard and finally determined on its merits; a suit dismissed on preliminary technical points does not trigger res judicata
  • Where two pending suits raise common questions of law or fact over the same property, the court may consolidate them rather than stay one under Section 6 of the Civil Procedure Act

Court orders

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  1. 1.The instant Originating Summons is consolidated with Thika ELC No. 15 of 2017 for hearing and determination
  2. 2.The Replying Affidavit filed on 2nd October 2018 by the 2nd Respondent, together with the Respondents' responses, is adopted as the formal reply to the instant suit
  3. 3.Prayers for declaration of legal ownership, partial discharge of the villas and permanent injunction are deferred to the main trial after calling of evidence
  4. 4.Costs of the Originating Summons to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 37 Rule 4
  • Civil Procedure Rules, 2010Order 21 rule 1

Cases cited (8)

  • Law Society Of Kenya …Vs… The Centre For Human Rights & Democracy
    Supreme Court of Kenya, Petition No. 14 of 2013
  • Dater Enterprises Co. Ltd –vs- Agnes Mumbanu Kinato
    [2019] eKLR, Machakos ELC No. 268 of 2011
  • Robai Kadili Agufa & Another –vs- Kenya Power & Lighting Co Ltd
    [2015] eKLR
  • Kenya Breweries Ltd & Another –vs- Washington O. Okey
    [2002] eKLR
  • Republic –vs- Registrar of Societies – Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others
    [2017] eKLR
  • Mwk …Vs… Amw
    [2016] eKLR
  • Nguruman Limited …Vs… Jan Bonde Nielsen & another
    [2017] eKLR
  • Nyati Security Guards & Services Ltd …Vs Municipal Council of Mombasa
    (2000) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Order 37 Rule 4 of the Civil Procedure Rules, 2010 and Section 3A 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, "Onesmus Ngige Munyambu & another v Kenwood Property Developers & another [2020] KEELC 2465 (KLR)", Case Analysis (2020). Originating Summons dated 24th April 2019 (ELC, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2465/eng@2020-05-14

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