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ELCStruck OutMeru ELC Originating Summons (undated in judgment; filed 17.4.2019) re L.R. Mariene/U/Abothuguchi/205· [2020] KEELC 3536 (KLR)

Jediel M’ Gaiti Kibera & anther v Mary Mugure & another [2020] KEELC 3536 (KLR)

Environment and Land Court
12 February 2020
LMLucy N. Mbugua
1,759 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a repeat adverse possession land claim, confirming you cannot relitigate issues a court already decided between the same parties.

What this practically means

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Executive summary

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The Plaintiffs/Applicants filed an amended Originating Summons on 17.4.2019 claiming L.R. Mariene/U/Abothuguchi/205 by adverse possession, asserting occupation since 1959, and sought a temporary injunction restraining the Defendants from interfering with their occupation. The Defendants opposed through a Preliminary Objection, grounds of opposition and a Replying Affidavit, arguing the claim was res judicata: the same adverse possession and trust claims over the same land and between the same parties had been raised in Meru HCCC No. 237 of 1990, in which Judge Isaac Lenaola dismissed the plaintiffs' suit on 16.10.2007, ordering eviction and declaring the 2nd defendant the legal owner. Instead of appealing, the 1st applicant pursued Meru Succession Cause No. 497 of 2007 (formerly Nairobi Succession Cause No. 211 of 1989) seeking revocation of the grant, which Judge Oginjo dismissed on 31/1/2019, permitting execution of the 2007 judgment. The court, relying on Section 7 of the Civil Procedure Act and Henderson v Henderson, held that the adverse possession issue belonged to the earlier litigation and that the applicants could not reopen it. Finding the Preliminary Objection merited, the court struck out both the Originating Summons and the application, with costs to the defendants. Judgment delivered at Meru on 12 February 2020 by Hon. Lucy N. Mbugua, ELC Judge.

Key legal issues

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01

Res judicata under Section 7 of the Civil Procedure Act

Holding

The Originating Summons and application for injunction are res judicata; the adverse possession claim over L.R. Mariene/U/Abothuguchi/205 was raised, heard and finally determined in Meru HCCC No. 237 of 1990, and the applicants' further attempt via the succession cause was dismissed on 31/1/2019

Reasoning

Section 7 bars trying a matter directly and substantially in issue in a former suit between the same parties, heard and finally decided by a competent court. In HCCC No. 237 of 1990 Judge Lenaola dismissed the plaintiffs' suit and ordered eviction, the claim there having included adverse possession and trust over the same land and parties. The applicants never appealed. Judge Oginjo's ruling of 31/1/2019 in the succession cause reaffirmed this and permitted execution. The new adverse possession suit is a third bite at the cherry.

p. 2

Legal principles established

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  • A party must bring forward its whole case in the first litigation; matters which could have been raised but were not are barred in subsequent suits (Henderson v Henderson extension of res judicata)

Court orders

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  1. 1.The suit (Originating Summons) filed by the plaintiffs is struck out
  2. 2.The application filed by the plaintiffs is struck out
  3. 3.Costs of the suit and application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (9)

  • Kibundi v Mukobwa & Anor
    (1993) eKLR
  • AKN v JNM
    (2014) eKLR
  • A N M v P M N
    [2016] eKLR
  • HENDERSON VS HENDERSON
    (1843-60) ALL E.R. 378
  • Bernard Mugo Ndegwa vs James Githae & 2 others
    (2010) eKLR
  • Michael Gachokii Gicheru vs Joseph Karobia Gicheru
    Kerugoya ELC No. 783 of 2013
  • Christopher Orina Kenyariri T/A Kenyariri & Associates vs Salama Beach Hotel Limited & 3 others
    (2017) eKLR
  • Ganatra vs Ganatra
    [2007] 1 EA
  • John Christopher Kamau vs Co-operative Bank of Kenya
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (adverse possession); not expressly stated in judgment

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, "Jediel M’ Gaiti Kibera & anther v Mary Mugure & another [2020] KEELC 3536 (KLR)", Case Analysis (2020). Meru ELC Originating Summons (undated in judgment; filed 17.4.2019) re L.R. Mariene/U/Abothuguchi/205. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3536/eng@2020-02-12

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