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ELCOtherELC Suit (Nairobi) - formerly before Obaga J (number not stated in judgment)· [2020] KEELC 2768 (KLR)

Registered Trustees of Ruiru Sports Club & 3 others v Isaac Karuri Nyongo & 15 others [2020] KEELC 2768 (KLR)

Environment and Land Court
5 May 2020
KBK. Bor
1,881 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an earlier judgment already settled who owns Ruiru Sports Club's land, so the duplicate case was stopped before trial.

What this practically means

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Executive summary

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In this Environment and Land Court suit, the Plaintiffs (Ruiru Sports Club) claimed they owned L.R. No. 122/4 (245.5 acres) from which the Defendants fraudulently excised 30 acres registered as L.R. No. 122/7, later subdivided and sold to third parties. During hearing in February 2020, the court was alerted that Obaga J had, in Milimani ELC Petition No. 28 of 2017 (in which the Plaintiffs were an Interested Party), upheld the National Land Commission's decision gazetting the Plaintiffs as the owners entitled to compensation for land taken for the Thika Super Highway, finding the property was unlawfully and fraudulently excised from the club. Parties filed submissions on whether that judgment had determined this dispute. The 3rd Defendant conceded Obaga J upheld NLC's decision but maintained his indemnity claim against NLC and the Attorney General for Kshs. 71,486,990/=. The 6th to 16th Defendants, alleging they were innocent purchasers not party to the NLC proceedings, sought a hearing on merit. Justice K. Bor held that Obaga J's judgment substantially determined the claim, leaving only (1) eviction of occupants of plots on the remaining 15 acres, to be pursued through the prescribed procedure, and (2) the 3rd Defendant's indemnity claim, which he must elect to prosecute only after pursuing (or abandoning) his appeal against Obaga J's decision to avoid conflicting decisions. The court ordered that the hearing of the suit need not proceed and that each party bear its own costs.

Key legal issues

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01

Whether the judgment in ELC Petition No. 28 of 2017 determined the issues in this suit

Holding

Yes - Obaga J found L.R. No. 122/7 belonged to the Plaintiff and was fraudulently excised and sold, which substantially determined the Plaintiff's claim.

Reasoning

Obaga J upheld NLC's decision gazetting the Plaintiff as owner after finding the suit property was unlawfully excised from the club's land and that the 3rd Defendant acquired it through fraudulent vendors with knowledge of pending litigation. Those are the very issues pleaded in this suit. What remains are only consequential matters - eviction and the 3rd Defendant's indemnity claim - which do not require trial of the main dispute.

p. 3
02

What remains outstanding in the suit

Holding

Only eviction of occupants of plots from the remaining 15 acres and the 3rd Defendant's indemnity claim against NLC and the Attorney General.

Reasoning

The court identified the residual matters: eviction must follow the statutory procedure on the Plaintiffs' application, and the indemnity claim cannot be prosecuted while the 3rd Defendant's appeal against Obaga J's decision is pending, as parallel proceedings risk conflicting decisions between the Court of Appeal and this court.

p. 3
03

Costs

Holding

Each party to bear its own costs since the suit need not proceed to hearing.

Reasoning

Obaga J had already awarded the Plaintiff costs in the petition; because that judgment substantially determined the claim in this suit, the hearing of this suit is unnecessary and it would be unjust to award costs against any party in a suit that never proceeded to full trial.

p. 3

Legal principles established

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  • Where a prior judgment has substantially determined the issues in dispute in a suit, the suit need not proceed to trial and parties bear their own costs of the now-redundant suit.
  • A litigant cannot simultaneously pursue an appeal against a decision and an inconsistent claim in the trial court over the same subject matter.

Court orders

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  1. 1.Hearing of the suit need not proceed as the judgment of Obaga J substantially determined the Plaintiff's claim
  2. 2.Each party to meet its own costs
  3. 3.3rd Defendant to elect whether to pursue his appeal against the decision of Obaga J or his claim for indemnity against NLC and the Attorney General, with preference for pursuing the appeal first unless he abandons it

Authorities

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Cases cited (1)

  • Samuel Kimondo Theuri v Dr. Mohamed Swazuri and 2 others
    Milimani ELC Petition No. 28 of 2017
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (land dispute; judgment on whether prior petition judgment by Obaga J substantially determined the suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Registered Trustees of Ruiru Sports Club & 3 others v Isaac Karuri Nyongo & 15 others [2020] KEELC 2768 (KLR)", Case Analysis (2020). ELC Suit (Nairobi) - formerly before Obaga J (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2768/eng@2020-05-05

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