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ELCDismissedEmbu ELC Suit (Originating Summons) – preliminary objection dated 2.2.2021· [2021] KEELC 46 (KLR)

Erick Muriithi Moses & 2 others v Faith Njoki Wambogo & 2 others [2021] KEELC 46 (KLR)

Environment and Land Court
16 December 2021
3,987 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a family land claim because the same dispute had already been decided, showing new parties cannot revive old cases.

What this practically means

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Executive summary

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The Environment and Land Court at Embu (A.K. Kaniaru, J) determined a preliminary objection dated 2.2.2021 filed by the 1st defendant against an Originating Summons in which the three plaintiffs sought a declaration of beneficial interest in land parcel Kagaari/Kanja/8735, registered in their mother's name and allegedly transferred and exchanged to defeat their interest, together with an order that the Land Registrar register them and the 1st defendant as joint proprietors. The 1st and 3rd defendants objected that the suit was res judicata Runyenjes PMCC No. 82 of 2015, that the court lacked jurisdiction, and that the suit was defective; the 2nd defendant and plaintiffs opposed. Applying Section 7 of the Civil Procedure Act and the five elements in the Maina Kiai case, the court found that the Runyenjes suit had concerned both parcels including Kagaari/Kanja/8735, that its parties substantially overlapped with the present parties, and that the beneficial-interest/disinheritance claim had been raised and considered there. The addition of two siblings and a re-tailored cause of action could not evade res judicata. The court allowed the objection on the res judicata and jurisdiction grounds, declining to entertain the generic 'bad in law' ground as it was not a pure point of law. The suit was dismissed in its entirety with no order as to costs, each side bearing its own costs, the court noting the familial relations between opposing parties.

Key legal issues

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01

Whether the third ground of the preliminary objection (that the suit is bad in law and incurably defective) qualifies as a preliminary objection

Holding

It does not; it requires scrutiny of pleadings and evidence

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law. A claim that a suit is defective and lacks merit requires examination of the pleadings and evidence to be called, and is therefore not entertainable as a preliminary point.

p. 3
02

Whether the present suit is res judicata Runyenjes PMCC No. 82 of 2015

Holding

Yes; the subject matter, parties and issues are substantially the same

Reasoning

The Runyenjes suit concerned both parcels Kagaari/Kanja/8735 and 3508 and restoration of both to their respective owners. The parties overlap, the 1st plaintiff having been a witness there, and family members litigating under the same title cannot defeat res judicata by additions. The beneficial-interest claim was raised and considered in the earlier suit.

p. 4
03

Whether the court has jurisdiction over the suit

Holding

It lacks jurisdiction because the suit is res judicata a suit determined by a competent court

Reasoning

Once the suit is found res judicata the court must down its tools; entertaining it risks conflicting orders given the pending appeal Embu ELCA No. 18 of 2018 against the Runyenjes judgment over the same subject matter.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Res judicata applies where the matter was directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally determined by a competent court
  • Adding parties or re-tailoring a cause of action cannot evade res judicata where the same subject matter and remedy are sought

Court orders

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  1. 1.The preliminary objection dated 2.2.2021 is allowed
  2. 2.The suit before the court is legally unsustainable and is hereby dismissed
  3. 3.Each side to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court ActSection 28
  • Environment and Land Court ActSection 13(1)
  • Constitution of KenyaArticle 162(2)

Cases cited (14)

  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    [2017] eKLR
  • Peter Gichuki Kangara vs Independent Electoral and Boundaries Commission & 2 Others
    C.A No. 23/2013, Nyeri
  • Lillian 'S'
    (1989) KLRI
  • E.T. v Attorney General & another
    [2012] eKLR
  • Gurbachau vs Yowani Ekori
    (1958) EA 450
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • D.T. Dobie & Co. (Kenya) Ltd vs Joseph Mbaria Muchina & Anor
    (1980) eKLR
  • Bernard Mugo Ndegwa vs James Nderitu Githae and 2 others
    [2010] eKLR
  • C.K Bett Traders Limited & 2 Others v Kennedy Mwangi & Another
    [2021] eKLR
  • Uhuru Highway Development Limited versus Central Bank of Kenya & 2 others
    [1996] eKLR
  • Kitale Chepkoror Farm vs Peter Nasasa & 4 others
    [2019] eKLR
  • Omondi v National Bank of Kenya Limited and Others
    [2001] EA 177
  • Njangu v Wambugu and Another
    Nairobi HCCC No. 2340 of 1991 (Unreported)
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13(1) of the Environment and Land Court Act, 2011

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, "Erick Muriithi Moses & 2 others v Faith Njoki Wambogo & 2 others [2021] KEELC 46 (KLR)", Case Analysis (2021). Embu ELC Suit (Originating Summons) – preliminary objection dated 2.2.2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/46/eng@2021-12-16

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