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ELCAllowedNotice of Motion dated 24th August 2020 (suit at Kerugoya ELC)· [2021] KEELC 788 (KLR)

Faith Wanjiru Ndambiri v Cyrus Muchira Ndambiri [2021] KEELC 788 (KLR)

Environment and Land Court
19 November 2021
ECE. C. Cherono
1,841 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 struck out a land suit because it re-litigated claims already decided, confirming you must bring your entire case in one suit.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th August 2020, the Defendant/Applicant sought the striking out of the Plaintiff's suit as res judicata and an abuse of the due process of the Court, with costs. The Applicant showed that the same parties had litigated over the same subject matter, Land Parcel No. BARAGWE/THUMAITA/1289, in Gichugu PMCC No. 10 of 2015, which was determined on 21st June 2016, and in the subsequent appeal ELCA No. 10 of 2016, in which the High Court set aside the trial court's judgment and dismissed the plaintiff's claim, holding that a joint tenancy can only be severed by execution of the necessary instruments under Section 91(7) of the Land Registration Act. The Plaintiff/Respondent opposed, admitting that the parties and subject matter were the same but contending the orders sought in the present suit were different. The Plaintiff also cited Moses Bii v Kericho District Land Registrar. In a ruling delivered at Kerugoya on 19th November 2021, E. C. Cherono, ELC Judge, applied Section 7 of the Civil Procedure Act, Henderson v Henderson, John Florence Maritime Services and E.T. v Attorney General. Identifying five undisputed facts - a former suit between the same parties, same subject matter, competent jurisdiction, heard and finally determined - the court held the suit was a second bite at the cherry and that a litigant must bring the whole claim at once. The application was allowed with costs to the Defendant/Respondent.

Key legal issues

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01

Whether the present suit, though framed with different prayers, is res judicata in respect of Gichugu PMCC No. 10 of 2015

Holding

The suit is res judicata; the parties, subject matter and competent court were identical and the former suit was heard and finally determined. Different prayers do not evade the doctrine.

Reasoning

The court found five facts undisputed: a former suit existed between the same parties, over the same subject matter, before a competent court, which was heard and substantially determined. Applying section 7 of the Civil Procedure Act and Henderson v Henderson, the court held a litigant must bring the whole claim at once and cannot break it into instalments. The plaintiff's suit was an attempt at a second bite at the cherry after her appeal (ELCA No. 10 of 2016) was dismissed.

p. 3
02

Whether litigants can evade res judicata by introducing new causes of action or different remedies

Holding

Courts must guard against litigants evading the doctrine by dressing up the same resolved claim in a new form.

Reasoning

Adopting the test in E.T. v Attorney General, the court held the relevant enquiry is whether the plaintiff is seeking in another form a cause of action already resolved by a court of competent jurisdiction. That the prayers in the present suit differed from those in the former suit did not save it, since the underlying subject of litigation was the same.

p. 3

Legal principles established

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  • A party must bring their whole claim in one suit and may not split it into numerous causes of action brought by instalments; doing so offends res judicata.
  • Res judicata applies not only to issues actually decided but to every point which properly belonged to the subject of litigation and could with reasonable diligence have been brought forward.

Court orders

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  1. 1.The Notice of Motion dated 24th August 2020 is allowed as prayed
  2. 2.The suit is struck off for being res judicata and an abuse of due process
  3. 3.Costs of the application and the suit to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 7
  • Land Registration ActSection 91(7) and Section 91(8)
  • Registered Land Act(repealed)

Cases cited (4)

  • Henderson Vs Henderson
    (1843) 67 ERS 313
  • E.T. Vs Attorney General & Another
    (2012) e KLR
  • John Florence Maritime Services Limited & Another Vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) e KLR
  • Moses Bii Vs Kericho District Land Registrar & Another
    (2015) e KLR
Jurisdiction invoked
Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya (doctrine of res judicata)

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, "Faith Wanjiru Ndambiri v Cyrus Muchira Ndambiri [2021] KEELC 788 (KLR)", Case Analysis (2021). Notice of Motion dated 24th August 2020 (suit at Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/788/eng@2021-11-19

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