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ELCStruck OutELC Case No. 186 of 2014· [2020] KEELC 3066 (KLR)

Evans Adam Pessa Muluka v Dorcas Christine Sande [2020] KEELC 3066 (KLR)

Environment and Land Court
16 April 2020
NMN.A. Matheka
787 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega struck out a land trespass suit because the same property dispute was already before other courts between the same parties.

What this practically means

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Executive summary

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The plaintiff sued the defendant in the Environment and Land Court at Kakamega claiming that on or about 23 February 2012 she entered and took possession of L.R. No. Kakamega Town Block 111/Plot 140, allegedly owned by one Eric Mwenda Muluka, without consent, thereby committing continuing trespass. He sought vacant possession, damages for trespass at Ksh. 45,000 per month from February 2012, costs and interest. The defendant denied the ownership claim and trespass, asserting she was the plaintiff's lawful wife who entered the property with the plaintiff's authority as a matrimonial home, and raised a threshold objection that the plaintiff had dishonestly sworn a verifying affidavit denying pending proceedings. She pointed to High Court Civil Suit No. 11 of 2013 filed by the plaintiff and to pending Kakamega CMCC No. 365 of 2013, in which she sued Eric Mwendwa over the same parcel, where Eric's title was challenged. The court framed the res judicata/sub judice question as a preliminary issue under Sections 6 and 7 of the Civil Procedure Act, Cap 21, quoting both sections. After perusing the proceedings and pleadings in the other cases, the court found the parties and subject matter similar, held the matter sub judice and/or res judicata Kakamega CMCC No. 365 of 2013, struck out the suit and made no orders as to costs. The court made no findings on the merits of ownership or trespass.

Key legal issues

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01

Whether the suit is sub judice/res judicata in respect of Kakamega CMCC No. 365 of 2013

Holding

The suit is sub judice and/or res judicata Kakamega CMCC No. 365 of 2013 and is struck off

Reasoning

The court invoked Sections 6 and 7 of the Civil Procedure Act, Cap 21, and perused the proceedings and pleadings in the other suits. It found the parties similar and the subject matter the same, namely title to and dealings over Kakamega Town Block 111/Plot 140. Being a preliminary issue, it was determined before the merits, leading to striking out of the suit.

p. 2
02

Whether the res judicata/sub judice issue should be determined as a preliminary issue before the merits

Holding

Yes; the court treated it as a preliminary issue and determined it first

Reasoning

The court noted the existence of prior and pending proceedings between the same parties over the same parcel, including High Court Civil Suit No. 11 of 2013 and Kakamega CMCC No. 365 of 2013 challenging Eric's title. It held this rendered the res judicata/sub judice question a threshold matter to be resolved even before the merits and demerits of the case.

p. 2

Legal principles established

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  • A court must not proceed with a suit whose subject matter is directly and substantially in issue in a previously instituted suit between the same parties (sub judice, Section 6, Civil Procedure Act)
  • A court shall not try a suit in which the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties (res judicata, Section 7, Civil Procedure Act)

Court orders

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  1. 1.The suit is struck off
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 6
  • Civil Procedure Act, Cap 21Section 7
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (implied); suit struck out under Sections 6 and 7 of the Civil Procedure Act, Cap 21

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, "Evans Adam Pessa Muluka v Dorcas Christine Sande [2020] KEELC 3066 (KLR)", Case Analysis (2020). ELC Case No. 186 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3066/eng@2020-04-16

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