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ELCAllowedNot stated in the excerpt (Notice of Motion dated 6th June 2019)· [2020] KEELC 2469 (KLR)

Charles Karanja Mashua v Mubiru Limited & 8 others [2020] KEELC 2469 (KLR)

Environment and Land Court
14 May 2020
1,755 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 6th to 9th Defendants moved the Court by Notice of Motion dated 6th June 2019 under sections 7 and 8 of the Civil Procedure Act, section 18(2) of the Land Registration Act and Order 2 Rule 15(1) of the Civil Procedure Rules, seeking striking out of the suit against them on grounds of res judicata, abuse of process and limitation. They contended the plaintiff had previously litigated the same subject matter: a 1997 boundary dispute before the District Land Registrar, Nairobi HCCC No. 1683 of 2002 (later Machakos HCCC No. 89 of 2009) struck out in 2012, and Machakos HCCC No. 145 of 2008 struck out in 2009; further, the cause of action arose in 1980-1981 and the parcels sought to be dealt with (256 and 257) no longer exist. The plaintiff opposed via Grounds of Opposition. Justice Christine Ochieng framed three issues. On res judicata, though the previous suits concerned the same boundary dispute, they had been struck out on preliminary technical grounds (lack of first-instance jurisdiction over boundary matters) and were not determinations on the merits, following MWK v AMW; the plea failed. On limitation, the cause of action arose from the 1980-1981 subdivisions and the disputed mutation of 12th October 1990; some 29 years had elapsed, exceeding the twelve-year limit in section 7 of the Limitation of Actions Act, and the section 26 fraud/mistake extension was unavailable since the plaintiff knew of the mutation and the Land Registrar's determination. The court found the application merited, struck out the plaintiff's claim against the 6th to 9th Defendants and awarded costs to them.

Key legal issues

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01

Whether the suit is res judicata

Holding

No. The previous suits (Machakos HCCC No. 89 of 2009 and Machakos HCCC No. 145 of 2008) were struck out at preliminary stages and were not heard on the merits, so res judicata is not triggered.

Reasoning

Applying section 7 of the Civil Procedure Act and the Court of Appeal's criteria in Stephen Wanganga Njoroge, the court required a prior suit heard and finally decided on the merits between the same parties. Relying on MWK v AMW, prior dismissals on preliminary technical points - including for want of jurisdiction - are not determinations on the merits. Accordingly, the plea of res judicata failed despite the similarity of subject matter.

p. 2
02

Whether the claim is statute barred

Holding

Yes. The cause of action arose in 1980-1981 and the dispute crystallised with the 1990 mutation; roughly 29 years had elapsed, far beyond the twelve-year limit under section 7 of the Limitation of Actions Act.

Reasoning

The plaintiff knew of the subdivisions, mutations and the disputed boundaries, having pleaded the mutation form of 12th October 1990, and the Land Registrar had determined the boundary dispute. The section 26 extension for fraud or mistake was therefore unavailable because the plaintiff could not claim recent discovery of the fraud. The claim against the 6th to 9th Defendants was time barred and was struck out.

p. 3
03

Whether the suit against the 6th to 9th Defendants should be struck out

Holding

Yes. The claim against them, relating to non-existent parcels Kajiado/Loitoktok/Olkaria/256 and 257 and being time barred, was struck out with costs.

Reasoning

Under Order 2 Rule 15(1) and section 7 of the Civil Procedure Act, the applicants sought striking out on grounds of res judicata, abuse of process and hopelessness. Though res judicata failed, the limitation ground independently justified striking out the claim against the 6th to 9th Defendants, with costs to them.

p. 3

Legal principles established

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  • A suit struck out on a preliminary technical point is not heard and determined on the merits and cannot found a plea of res judicata
  • Boundary disputes must first be dealt with by the Land Registrar before the Court can handle them
  • An action to recover land must be brought within twelve years of the right of action accruing, and section 26 extension is unavailable to a plaintiff who knew of the fraud or mistake

Court orders

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  1. 1.The suit against the 6th to 9th Defendants is struck out with costs to them
  2. 2.The Notice of Motion dated 6th June 2019 is allowed with costs to the 6th to 9th Defendants

Authorities

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Legislation

  • Civil Procedure Actsections 7 and 8
  • Land Registration Actsection 18(2)
  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Registered Land Act (repealed)section 21
  • Limitation of Actions Actsections 7 and 26
  • Constitution of KenyaArticle 50(1)

Cases cited (7)

  • Joshua Ngatu V Jane Mpinda & 3 Others
    (2019) eKLR
  • Nelson Machoka Keraro V Land Registrar, Kisii & 3 Others
    (2019) eKLR
  • Mary Wairimu Muraya V Ngari Muraya
    (2015) eKLR
  • MWK Vs AMW
    (2016) eKLR
  • D T Dobie & Company (Kenya) Limited V Joseph Mbaria Muchina & Another
    (1980) eKLR
  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
Jurisdiction invoked
Sections 7 and 8 of the Civil Procedure Act, Section 18(2) of the Land Registration Act and Order 2 Rule 15(1) of the Civil Procedure Rules

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, "Charles Karanja Mashua v Mubiru Limited & 8 others [2020] KEELC 2469 (KLR)", Case Analysis (2020). Not stated in the excerpt (Notice of Motion dated 6th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2469/eng@2020-05-14

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