Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNakuru ELC Case (Further Further Amended Plaint dated 17/6/2013) - application dated 20th September 2019· [2021] KEELC 208 (KLR)

Eliud Ngugi Mbugua v Josphat Mwangi Muhoro & 15 others [2021] KEELC 208 (KLR)

Environment and Land Court
16 December 2021
2,617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a res judicata challenge because the earlier case involved different parties and different issues, so the land suit proceeds.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge J) on the defendants' application dated 20th September 2019 seeking to strike out the plaintiff's suit as res judicata Nakuru ELC Case No 79 of 2016 (Mbugua Thuo v Laban Gatonye Kamau), in which an injunction claim over Plots 625 and 625/626 Tayari Farm was dismissed on 30/4/2019. The instant suit, commenced by Further Further Amended Plaint dated 17/6/2013, seeks cancellation of numerous titles arising from the subdivision of the two plots, a declaration that the subdivision was illegal, reversion of the parcels, and a permanent injunction. The defendants argued the suits raised the same issues, relying on the shared Land Registrar and Surveyor's joint report. The plaintiff countered that the parties, reliefs and issues differ, that he was litigating against numerous parties not before the earlier court, that the earlier judgment concerned only an injunction and not ownership, and that the defendants had themselves opposed consolidation of the two suits. The court set out the five conjunctive ingredients of res judicata from Lotta v Tanaki as adopted in Republic v City Council of Nairobi and found the first two ingredients unfulfilled: the matters in issue were not the same, and the present defendants were neither named in nor represented in the former suit. The remaining questions of competency and finality therefore did not arise. The application was dismissed with costs to the plaintiff.

Key legal issues

#
01

Whether the instant suit is res judicata Nakuru ELC Case No 79 of 2016 Mbugua Thuo v Laban Gatonye Kamau

Holding

The suit is not res judicata because the matters in issue were not the same and the parties (or their privies) were not the same, the defendants having been neither named nor represented in the former suit.

Reasoning

The former suit concerned only an injunction against interference and involved a single defendant; the instant suit seeks cancellation of titles to numerous parcels belonging to persons not involved in the former suit. The defendants were not joined in the former suit nor sued through a representative. The proposed consolidation of the two suits had been objected to by the defendants themselves. Since the first and second elements failed, the court did not reach competency or finality, all ingredients being conjunctive.

p. 4
02

Locus standi of the former suit's defendant to represent the present defendants

Holding

The defendants did not assert, and it could not be assumed, that the defendant in the former suit was sued in a representative capacity for the present defendants, including body corporates and bodies sued through registered trustees.

Reasoning

The court found the question of deemed representation vital. Several present defendants are not natural persons, and the former suit's defendant was not joined in the instant suit. Absent any representative capacity, there is no privity between the defendants in the two suits, defeating the second ingredient of res judicata.

p. 4

Legal principles established

#
  • All the ingredients of res judicata must be construed conjunctively; if any one fails, the doctrine does not apply.
  • A defendant in a former suit who was not joined in the subsequent suit cannot be deemed to represent parties not before the court in the earlier case.
  • A party who objected to consolidation of two suits cannot later invoke res judicata on the basis of the unconsolidated suit.

Court orders

#
  1. 1.The application dated 20th September 2019 seeking to strike out the suit as res judicata is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

#

Legislation

  • Civil Procedure ActSection 7

Cases cited (20)

  • Republic v City Council of Nairobi & 2 others
    [2014] eKLR
  • Lotta vs. Tanaki
    [2003] 2 EA 556
  • Mombasa ELC No 160 Of 2019 Pangaea Holdings Ltd Vs Hacienda Developments Ltd & 2 Others
  • Eldoret ELC No 19 Of 2019 Diocese Of Eldoret Registered Trustees Vs The Hon Attorney General and Another
  • Meru ELC No 15 Of 2018 Joshua Ngatu Vs Jane Mpinda
  • Eldoret ELC No 16 Of 2020 Ednah Jebiwott Kiplagat Vs Philip Kiprotich Tuitoek & 2 Others
  • Nairobi Civil Appeal (CA) No 261 Of 2002 Daniel Kirui & Another Vs Monicah W Macharia & Another
  • Geoffrey Mungai Njenga & Another Vs Registrar Of Titles & Another
    2021 eKLR
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No 22 Of 1999
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Civil Suit No 53 Of 2004, Kisumu
  • Mukhisa Biscuits decision
  • Executive Estates Ltd Vs Kenya Posts & Another
    2005 1EA 53
  • Middle Town Forex Bureau Vs Central Bank Of Kenya
    2016 eKLR
  • George Owino Odhiambo & 13 Others Vs Kenya Railways Corporation And Another
  • Law Society Of Kenya Vs Commissioner Of Lands & Others
    Nakuru HCCC No 464 Of 2000
  • Alfred Njau & Others Vs City Council Of Nairobi
    1982 KAR 229
  • Halsbury's Laws of England 3rd Edition Vol 18 Para 239
  • Jane Nyambura Joshua Vs Apostolic Faith Church
    Nairobi Civil Suit No 2824 Of 1997 (OS)
  • Moir Vs Wallersteiner
    1975 1 ALL ER 849
  • Amina Akberali Manji & 2 Others Vs Altaf Abdulrasul Dadani & Another
    2015 eKLR
Jurisdiction invoked
Section 7 of the Civil Procedure Act (doctrine of res judicata)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eliud Ngugi Mbugua v Josphat Mwangi Muhoro & 15 others [2021] KEELC 208 (KLR)", Case Analysis (2021). Nakuru ELC Case (Further Further Amended Plaint dated 17/6/2013) - application dated 20th September 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/208/eng@2021-12-16

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