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ELCStruck OutELC Case No. 221 of 2017· [2020] KEELC 3534 (KLR)

Joel Eregwa Kidiva v John Mudasia Mugadia [2020] KEELC 3534 (KLR)

Environment and Land Court
18 February 2020
NMN.A. Matheka
695 words in judgment
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The bottom line

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A Kenyan landowner's trespass suit was struck out because the same land dispute was already pending in a lower court, so he won nothing despite holding the title deed.

What this practically means

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Executive summary

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The plaintiff, registered owner of land parcel No. Nyang'ori/Banja/146, sued for trespass, seeking eviction of the defendant, an injunction restraining interference with his use and enjoyment of the land, costs and any other relief. He asserted he held a title deed and that the defendant had entered a portion of the land without any colour of right and was wasting it. The defendant, in defence, claimed beneficial interest in the parcel, asserting he had purchased a portion from one Zakaria A. Mathayo, the plaintiff's brother, under a written and signed agreement made between 7 January 2006 and 27 September 2009 for Ksh. 62,500, which he contended was fully acknowledged, and that he had been in possession since January 2006. The defendant also raised a preliminary point of law in paragraph 8 of his defence, that the suit was duplicative of the still-pending Hamisi SRMCC No. 45 of 2015. The court treated the question whether the suit was res judicata or sub judice as a preliminary issue to be decided before the merits, reproduced Sections 6 and 7 of the Civil Procedure Act (Cap 21), and on perusal of the court file found the proceedings of the earlier Hamisi suit annexed to the defence, with similar parties and the same subject matter. Holding the matter sub judice, the court struck out the suit with no orders as to costs. Judgment delivered at Kakamega on 18 February 2020 by N.A. Matheka, J. No case authorities were cited.

Key legal issues

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Whether the plaintiff's suit is sub judice given the pending Hamisi SRMCC No. 45 of 2015

Holding

Yes - the parties and subject matter are the same as in the pending magistrate's court suit, so this suit is sub judice and was struck out

Reasoning

The defendant raised, in paragraph 8 of his defence, a preliminary point that the suit was duplicative of the pending Hamisi SRMCC No. 45 of 2015. The court held the sub judice/res judicata question under Sections 6 and 7 of the Civil Procedure Act must be resolved before the merits. On perusing the court file, the proceedings of the earlier suit were annexed to the defence, and the parties and subject matter were found to be the same.

p. 2

Legal principles established

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  • A court shall not proceed with the trial of a suit whose matter is directly and substantially in issue in a previously instituted suit between the same parties or parties under whom they claim, litigating under the same title (sub judice rule, Section 6 Civil Procedure Act)
  • Res judicata under Section 7 of the Civil Procedure Act bars trial of a matter directly and substantially in issue in a former suit between the same parties or their privies, heard and finally decided by a competent court

Court orders

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  1. 1.This suit is struck off with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction (the judgment does not cite a specific constitutional/statutory provision)

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, "Joel Eregwa Kidiva v John Mudasia Mugadia [2020] KEELC 3534 (KLR)", Case Analysis (2020). ELC Case No. 221 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3534/eng@2020-02-18

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