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ELCStruck OutNot stated in the judgment as provided· [2020] KEELC 3890 (KLR)

Teresia Murugi Murigi v Phylis Wairimu Konchella & another [2020] KEELC 3890 (KLR)

Environment and Land Court
28 January 2020
MSMunyao Sila
1,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Mombasa court struck out a property buyer's suit because the seller had already lost ownership of the land in an earlier court case.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Munyao Sila, J) determined a preliminary objection by the 3rd defendant, Kevin Donald Binnie, that the plaintiff's suit for specific performance was res judicata. The plaintiff had sued the 1st defendant, Phylis Wairimu Konchella, and the Land Registrar, Mombasa, seeking specific performance of a 2014 sale of Plot MN/III/6903 (CR No. 53285) for Kshs. 6,500,000, later amending the plaint to seek an order compelling the Land Registrar to register a transfer. Binnie, enjoined as 3rd defendant in 2018, asserted that title to the property had been vested in him by Mombasa High Court Matrimonial Cause No. 6 of 2014 and counterclaimed for a declaration of bona fide ownership. The court applied Sections 6 and 7 of the Civil Procedure Act and held that the plaintiff, though not a party to the matrimonial cause, was litigating under the 1st defendant's alleged title, which that suit had already determined did not exist. The suit was therefore res judicata and, in any event, hopeless, since specific performance cannot be ordered against a person without title to transfer. The court struck out both the suit and the 3rd defendant's counterclaim, left the plaintiff free to pursue a refund claim, and ordered each party to bear their own costs, recognising the plaintiff may reasonably have believed the 1st defendant held title.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata because the issue of ownership of the suit property was decided in Mombasa High Court Matrimonial Cause No. 6 of 2014, and the plaintiff claims under the title of the 1st defendant who lost in that suit

Reasoning

The court applied Sections 6 and 7 of the Civil Procedure Act. Section 7 extends res judicata to parties claiming under parties to a former suit. The plaintiff seeks specific performance premised on the 1st defendant holding transferable title, but it was already held in the matrimonial cause that title vests in the 3rd defendant. The plaintiff, litigating under the 1st defendant's alleged title, is barred from relitigating ownership. No appeal from that decision was shown.

p. 2

Legal principles established

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  • Res judicata applies where a party litigates under the title of a person whose ownership of the subject property has already been decided in a former suit, even though the party was not herself a party to that former suit
  • Specific performance cannot be ordered against a party who, as already judicially determined, holds no title capable of transfer

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.The 3rd defendant's counterclaim is struck out
  3. 3.Each party to bear his/her own costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21, Laws of KenyaSections 6 and 7
Jurisdiction invoked
Sections 6 and 7 of the Civil Procedure Act, Cap 21, Laws of Kenya

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, "Teresia Murugi Murigi v Phylis Wairimu Konchella & another [2020] KEELC 3890 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3890/eng@2020-01-28

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