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ELCDismissedMakueni ELC (suit filed 17/5/2018); Notice of Motion dated 22nd July 2019· [2020] KEELC 2470 (KLR)

Rose Mwongeli Wambua v John Kilungu Mbondo [2020] KEELC 2470 (KLR)

Environment and Land Court
22 May 2020
CMC.G. Mbogo
825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a land suit dismissed for want of prosecution can be refiled — res judicata does not apply.

What this practically means

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Executive summary

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The Defendant/Applicant moved the Environment and Land Court at Makueni by Notice of Motion dated 22nd July 2019, brought under Order 1A, 1B, 3, 3A and 7 of the Civil Procedure Act and Order 2 Rule 15(1)(b) and (d) and Order 51 Rule 1 of the Civil Procedure Rules, seeking dismissal or striking out of the Plaintiff's suit filed on 17th May 2018 as res judicata, scandalous, frivolous, vexatious and an abuse of the court process, with costs. He contended that the suit was an exact replica of Makueni ELC No. 202 of 2017 (originally Machakos ELC No. 237 of 2015), which the court had dismissed on 16th May 2018 for want of prosecution in the presence of the plaintiff's advocate, and that the plaintiff neither appealed nor sought review or setting aside. The Plaintiff opposed through a replying affidavit, explaining that the earlier suit was dismissed for want of attendance because she was sick, that it was never heard on the merits, and that the defendant remained free to execute for costs. The application was disposed of by written submissions. The court reproduced section 7 of the Civil Procedure Act and held that, since the former suit was dismissed for want of prosecution, its issues were never substantially heard and finally determined; the new suit therefore could not be res judicata, and the fact that costs of the dismissed suit were unpaid and untaxed did not change this. The suit was found not scandalous, vexatious or abusive, and the application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the instant suit is res judicata by virtue of the dismissal of Makueni ELC No. 202 of 2017

Holding

It is not res judicata because the former suit was dismissed for want of prosecution and its issues were never heard and finally determined as required by section 7 of the Civil Procedure Act.

Reasoning

Section 7 bars trying a suit where the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties. Here, ELC No. 202 of 2017 (originally Machakos ELC No. 237 of 2015) was dismissed on 16th May 2018 for want of prosecution, in the presence of the plaintiff's advocate. Since the issues were never substantially heard and determined, res judicata does not arise. Unpaid, untaxed costs in the dismissed suit do not alter this position.

p. 2
02

Whether the suit is scandalous, frivolous, vexatious or an abuse of the court process

Holding

The suit is none of these, and the striking-out application fails.

Reasoning

Having found that the prior dismissal for want of prosecution left the issues open, the court concluded that the fresh suit raising substantially the same issues is not scandalous, frivolous or vexatious, nor an abuse of process. The application therefore lacked merit and was dismissed with costs to the plaintiff.

p. 2

Legal principles established

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  • A suit dismissed for want of prosecution is not 'heard and finally decided' for purposes of res judicata under section 7 of the Civil Procedure Act.

Court orders

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  1. 1.The Notice of Motion dated 22nd July 2019 seeking dismissal/striking out of the suit is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 7; Order 1A, 1B, 3, 3A and 7
  • Civil Procedure RulesOrder 2 Rule 15(1)(b) and (d); Order 51 Rule 1
Jurisdiction invoked
Order 1A, 1B, 3, 3A and 7 of the Civil Procedure Act, Order 2 Rule 15(1)(b) and (d), Order 51 Rule 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, "Rose Mwongeli Wambua v John Kilungu Mbondo [2020] KEELC 2470 (KLR)", Case Analysis (2020). Makueni ELC (suit filed 17/5/2018); Notice of Motion dated 22nd July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2470/eng@2020-05-22

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