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ELCDismissedELC Case (Plaint dated 21st May 2020), Nairobi· [2021] KEELC 985 (KLR)

Lucy Njoki Gichuru v Hannah Wanjiku [2021] KEELC 985 (KLR)

Environment and Land Court
17 November 2021
2,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a land suit because the same dispute had already been decided in a concluded succession case, and appeals, not fresh suits, are the remedy.

What this practically means

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Executive summary

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By a plaint dated 21st May 2020, the Plaintiff sought declarations that the Defendant's claim to a portion of L.R No. Dagoreti/Ruthimitu/589, a parcel forming part of the estate of the late Tabitha Nyambura Kinuthia, was null and void because it was made before conclusion of the succession process and confirmation of the grant, together with a declaration that only bona fide beneficiaries could receive portions of the parcel, and costs. The Defendant filed a preliminary objection dated 28th September 2021 contending that the suit offended Sections 6 and 7 of the Civil Procedure Act, being res judicata in light of the concluded Milimani High Court Succession Cause No. 2948 of 2013, in which Muchelule J, Musyoka J and Mutuku J had rendered judgment and rulings. The Plaintiff countered that the dispute concerned a sale of land and that the ELC had jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the Succession Court lacking jurisdiction over sale and purchase questions. The court, E. K. Wabwoto J, first addressed jurisdiction, holding that the declarations sought could only issue from the Succession Court under Article 165(3). It further found the suit fell squarely within the doctrine of res judicata under Section 7, the same matter having been determined by a competent court of concurrent jurisdiction between the same parties, and that filing a fresh suit instead of appealing or seeking review was an abuse of process. The preliminary objection was upheld, the suit dismissed with costs to the Defendant.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute concerning land sold during the pendency of a succession cause and whose determination requires declarations only the Succession Court can issue

Holding

The ELC lacks jurisdiction; the declarations sought can only issue from the Succession Court exercising original and unlimited civil jurisdiction under Article 165(3)

Reasoning

The dispute involves property forming part of a deceased's estate under administration. The prayers sought declarations that the Defendant's claim was null and void before conclusion of succession and confirmation of grant. Such declarations fall within the realm of the Succession Court, and Beatrice Wambui Kiarie shows the ELC declines jurisdiction in succession disputes.

p. 3
02

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

Yes; the matter was directly and substantially in issue in Nairobi High Court Succession Cause No. 2948 of 2013, which was concluded with judgment and rulings by competent courts of concurrent jurisdiction

Reasoning

Judgments and rulings by Muchelule J, Musyoka J and Mutuku J in the succession cause had already determined the issues between the same parties. The subject matter and parties substantially overlap. Filing a fresh suit instead of appealing or seeking review constitutes abuse of court process.

p. 4

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • Jurisdiction is fundamental; a court must down its tools the moment it finds it lacks jurisdiction
  • Res judicata extends to every point which properly belonged to the subject of litigation and which the parties might have brought forward, per Henderson v Henderson
  • A party dissatisfied with decisions in a concluded succession cause should appeal or seek review, not file a fresh suit, which is an abuse of process

Court orders

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  1. 1.The Defendant's preliminary objection dated 28th September 2021 is upheld
  2. 2.The Plaintiff's suit is dismissed
  3. 3.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165(3)
  • Environment and Land Court ActSection 13(1) and (2)
  • Law of Succession ActSection 71

Cases cited (11)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Oraro –v- Mbaja
    [2007] KLR 141
  • Hassan Ali Joho & another -v- Suleiman Said Shabal & 2 Others
    SCK Petition No. 10 of 2013 [2014] eKLR
  • Owners of the Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Beatrice Wambui Kiarie & 2 Others v Tabitha Wanjiku Ng'ang'a & 9 Others
    [2018]
  • Mpatinga Ole Kamuye v Meliyo Tipango & 2 others
    [2017] eKLR
  • Henderson vs Henderson
    (1843) 67 ER 313
  • Stephen Wanganga Njoroge vs Stanley Ngugi Njoroge & another
    (2017) EKLR
  • E.T.V. vs Attorney General & another
    (2012) EKLR
  • Independent Electoral and Boundaries Commission vs. Kiai & 5 others
    (2017) EKLR
On appeal from
null
null
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Njoki Gichuru v Hannah Wanjiku [2021] KEELC 985 (KLR)", Case Analysis (2021). ELC Case (Plaint dated 21st May 2020), Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/985/eng@2021-11-17

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