Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 193 of 2014· [2021] KEELC 573 (KLR)

David Gikonyo Njiiri (Suing as the legal representative and administrator of the Estate of the late Wilson Njiiri Gikonyo –Deceased) v Ruth Mary Wangui & 7 others [2021] KEELC 573 (KLR)

Environment and Land Court
8 December 2021
2,485 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

#

A Kenyan land court refused to rehear an injunction already decided in the same case, dismissing the estate's application with costs.

What this practically means

#

Executive summary

#
The plaintiff, suing as administrator of the estate of the late Wilson Njiiri Gikonyo, brought a Notice of Motion dated 18/8/2021 in ELC No. 193 of 2014 (Nakuru) seeking, among other things, review of an order of 22/6/2021 on service of his application of 5/10/2020, a temporary injunction restraining all eight defendants from interfering with land parcel Njoro/Ngata Block 1/61 (Plots 6268-6313), removal of a fence erected by the 7th defendant, summons to a non-party, Jane Muthoni Kanyuira, an inquiry into damages she allegedly caused, attachment of proceeds of a beans crop, and compensation for damage to the suit property. The court disposed of the application first as prayed. On review, although the affidavit of service lacked proof of attachment, the defendants' replying affidavit admitted service, so the issue was allowed to rest. On injunction, the defendants pleaded res judicata, relying on Munyao J's ruling of 1/3/2017, reported as [2017] eKLR, in the same suit, which determined a substantively identical injunction application; that ruling is the subject of a pending appeal (Civil Appeal No. 124 of 2017). The court held the injunction prayer res judicata. The fence-removal prayer would amount to a summary trial; orders against Jane Muthoni Kanyuira could not issue as she is a non-party with no claim established against her; and compensation had to await trial. The entire application was dismissed with costs to the respondents.

Key legal issues

#
01

Review of the order of 22/6/2021 on service

Holding

Review failed on the plaintiff's own evidence, but the service issue was laid to rest by the defendants' admission of service in the replying affidavit

Reasoning

The plaintiff relied on an affidavit of service dated 18/11/2020, but no attachment proving service on Mr Ikua's firm was on the record, so the review would fail on the plaintiff's evidence alone. However, Mr Ikua's replying affidavit acknowledged service, and the court held the issue should rest on that admission.

p. 5
02

Res judicata as to the injunction prayer

Holding

The injunction prayer was res judicata, an identical application having been heard and determined on merits by Munyao J on 1/3/2017, a ruling now the subject of a pending appeal

Reasoning

The court compared the prayers in the present application with those determined in the ruling reported as David Gikonyo Njiiri v Ruth Mary Wangui and 7 Others [2017] eKLR in ELC No. 193 of 2014, the same suit. The appeal against that ruling pends before the Court of Appeal, but that did not displace res judicata.

p. 6
03

Ancillary prayers against a non-party and for compensation

Holding

Refused: orders against a non-party cannot issue absent a claim; compensation cannot be granted at the interlocutory stage

Reasoning

Jane Muthoni Kanyuira was a stranger not joined by any normal mode of commencing suit, so summons, inquiry and attachment of crop proceeds could not issue against her. Compensation for damages to the suit property was a substantive remedy reserved for the full hearing.

p. 5

Legal principles established

#
  • An injunction prayer that has already been heard and determined on its merits cannot be re-litigated in the same suit; such a plea is res judicata
  • Orders against a non-party cannot be granted where no claim against that person has been established by any normal method of commencing suit

Court orders

#
  1. 1.The application dated 18/8/2021 is dismissed with costs to the respondents

Authorities

#

Cases cited (1)

  • David Gikonyo Njiiri (suing as the legal representative and administrator of the estate of the Late Wilson Njiiri Gikonyo- Deceased) v Ruth Mary Wangui and 7 Others
    [2017] eKLR
On appeal from
null
null
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit land parcel Njoro/Ngata Block 1/61; applicant invoked the court's power of review of its own orders

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Gikonyo Njiiri (Suing as the legal representative and administrator of the Estate of the late Wilson Njiiri Gikonyo –Deceased) v Ruth Mary Wangui & 7 others [2021] KEELC 573 (KLR)", Case Analysis (2021). ELC No. 193 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/573/eng@2021-12-08

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