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ELCStruck OutELC Case No. 47 of 2021 (Thika) - Plaint dated 9th March 2021· [2021] KEELC 333 (KLR)

Celine Wambui Kigwe v Kigwe Limited & another [2021] KEELC 333 (KLR)

Environment and Land Court
9 December 2021
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who lost a case through a related company could not refile it personally—the court dismissed the entire suit as res judicata and awarded costs.

What this practically means

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Executive summary

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The 2nd Defendant, Mhasibu Housing Company Limited, raised a preliminary objection on 12/8/2021 contending that the Plaintiff's suit over LR No. 10823/13 was res judicata, having been determined in Nairobi ELC Case No. 454 of 2013 (Kigwe Limited v Violet Wacuka Ngugi & others) by Komingoi J on 22/7/2021, contrary to Section 7 of the Civil Procedure Act. The Plaintiff opposed, admitting the former suit but asserting she was not a party to it and had withdrawn her late application to be enjoined. Neither party filed written submissions despite directions. Applying the Mukisa Biscuit criteria and the conjunctive elements of res judicata from IEBC v Maina Kiai, Kemei J found that the prayers in both suits were the same, both causes of action were founded on fraud, and both targeted the 2nd Defendant's title to LR No. 10823/13. The Plaintiff, daughter of Charles Kigwe and sibling of parties in the former suit, litigated under the same title, and the former judgment's injunction bound Kigwe Ltd and all claiming under it. The former suit had been heard and finally determined by a competent court; the Plaintiff's remedy lay in appeal or review, not a fresh suit. The objection succeeded and the suit was dismissed with costs to the 2nd Defendant on 9th December 2021.

Key legal issues

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01

Whether the suit offends Section 7 of the Civil Procedure Act on res judicata

Holding

The suit is res judicata and is dismissed

Reasoning

The subject matter in both suits is LR No. 10823/13 and both causes of action were founded on fraud; the prayers in the instant suit are the same as those in ELC 454 of 2013, targeting the 2nd Defendant's title. The Plaintiff litigates under the same title as Kigwe Ltd, being the daughter of Charles Kigwe and a sibling of the parties in the former suit. The former suit was heard and finally determined by a competent court on 22/7/2021; the Plaintiff's remedy is appeal or review.

p. 3
02

Whether the Plaintiff, though not a party to the former suit, is bound by its judgment

Holding

She is a party claiming under the same title, being related to and claiming through the same roots as the parties in the former suit

Reasoning

The Plaintiff alleged that her late father Charles Kigwe registered the land in the 1st Defendant's name in trust for his children; any member of the family could pursue the claim. The 2nd Defendant was sued in a similar capacity in the former suit, and the former judgment's injunction bound Kigwe Ltd and anyone claiming under it. The parties being related are litigating under the same title.

p. 3
03

Whether the preliminary objection met the Mukisa Biscuit criteria

Holding

Yes - res judicata is a pure point of law capable of disposing of the suit

Reasoning

The objection raised only the legal plea of res judicata under Section 7 of the Civil Procedure Act; on the facts as pleaded it disposed of the entire suit. The court applied the settled criteria from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and the conjunctive elements set out in IEBC v Maina Kiai & 5 Others.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • For res judicata to apply, the elements of Section 7 of the Civil Procedure Act must be satisfied in conjunctive terms: same issue, same or privy parties, same title, heard and finally determined by a competent court
  • Res judicata bars litigants or persons claiming under the same title from returning to court to claim reliefs not claimed in the earlier action

Court orders

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  1. 1.The 2nd Defendant's Notice of Preliminary Objection dated 12/8/2021 is allowed
  2. 2.The Plaintiff's suit is dismissed
  3. 3.Costs of the suit are awarded to the 2nd Defendant, payable by the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
  • Independent Electoral and Boundaries Commission –v- Maina Kiai & 5 Others
    (2017) eKLR
  • E.T.V –v- Attorney General & Another
    [2012] eKLR
  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another
    [2016] eKLR
  • Kigwe Limited vs Violet Wacuka Ngugi, Mhasibu Housing Company Limited, The Hon. Attorney General and Susan Wanjiru Muriti (Nairobi ELC Case No. 454 of 2013)
    null
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; objection founded on Section 7 of the Civil Procedure Act (Cap 21)

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, "Celine Wambui Kigwe v Kigwe Limited & another [2021] KEELC 333 (KLR)", Case Analysis (2021). ELC Case No. 47 of 2021 (Thika) - Plaint dated 9th March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/333/eng@2021-12-09

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