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ELCDismissedELC Nakuru (Mau Summit/Molo Block 7/1036 Tayari suit) - notice of motion dated 17/5/2021· [2021] KEELC 1337 (KLR)

Joseph Maina Njoroge v Johnstone Mbugua Kinoro & another [2021] KEELC 1337 (KLR)

Environment and Land Court
28 October 2021
1,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nakuru struck out a land dispute because the same parties had already litigated the same property issues in 2003.

What this practically means

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Executive summary

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The plaintiff, Joseph Njoroge Maina, moved the Environment and Land Court at Nakuru by notice of motion dated 17/5/2021 seeking a temporary injunction restraining the defendants from entering, cultivating, selling, constructing on or dealing with land known as Mau Summit/Molo Block 7/1036 (Tayari). He claimed that in 1980 he balloted for and was allotted Plot No. 22 in Tayari Farmers Limited, which the 1st defendant fraudulently registered in his own name and later transferred to the 2nd defendant, who has developed the property. The 1st defendant filed a preliminary objection that the suit is statutorily barred under Section 7 of the Limitation of Actions Act and is res judicata, the same issues having been determined in Molo SRM Civil Suit No. 315 of 2003, which was struck out on 26/3/2004. The court framed two issues: whether the suit is res judicata and whether the injunction should issue. Applying Section 7 of the Civil Procedure Act, Section 28 of the Environment and Land Court Act and the authority of Gurbachan v Yowani Ekori, Henderson v Henderson, IEBC v Maina Kiai and E.T. v Attorney General, the court found the same property, the same parties (the 1st defendant being John Mbugua under a different name) and the same fraud issues were litigated and determined in 2003/2004. It held the plaintiff's suit was an abuse of process, with non-disclosure of the earlier suit. The preliminary objection was allowed, the injunction application dismissed with costs, and the entire suit struck out as res judicata and an abuse of court process.

Key legal issues

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01

Whether the suit is res judicata given the prior Molo SRM Civil Suit No. 315 of 2003

Holding

Yes - the suit is res judicata; it concerns the same property (Plot No. 404, now Mau Summit/Molo Block 7/1036), the same parties (the 1st defendant being the same as John Mbugua under a different name), the same issues of fraud, and the prior suit was heard and finally determined on 26/3/2004.

Reasoning

The court found the suit property in both cases identical: the plaintiff's own amended plaint confirmed Plot No. 404 Tayari Farm is now Mau Summit/Molo Block 7/1036 (Tayari). Despite the plaintiff's affidavit referring to Plot No. 22, he annexed a ballot card for Plot No. 404. Fraud was the central issue in both suits. The 1st defendant, though named differently in the 2003 suit, is the same person. Evidence of a letter requesting a decree and certificate of costs sufficed to show the earlier suit was finally determined.

p. 3
02

Whether the plaintiff's conduct amounts to abuse of court process

Holding

Yes - the plaintiff attempted to reopen a concluded matter by using a different name for the 1st defendant and failed to disclose the prior 2003 suit.

Reasoning

The court held that the plaintiff deliberately used a different name for the 1st defendant while knowing he was the same person, and concealed the earlier suit involving the same property, party and issues. This non-disclosure and attempt to re-litigate a concluded matter constituted an abuse of process, justifying striking out the suit on the preliminary objection.

p. 3
03

Whether a temporary injunction should issue

Holding

No - the application for injunction was dismissed with costs once the suit was found res judicata.

Reasoning

Having upheld the preliminary objection on res judicata, the court dismissed the interlocutory injunction application. With the suit itself struck out as an abuse of process, the foundational claim could not sustain injunctive relief, and costs were awarded to the defendants.

p. 3

Legal principles established

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  • For res judicata to be upheld, five elements must be satisfied conjunctively: direct and substantial issue in the former suit, same or derivative parties, litigating under the same title, issue heard and finally determined, and a competent former court.
  • Res judicata bars not only issues actually decided but every issue which properly belonged to the subject of litigation and which could with reasonable diligence have been raised.
  • Courts must guard against litigants evading res judicata by re-packaging a resolved cause of action in a new form.
  • Public interest demands an end to litigation; re-litigating concluded matters with non-disclosure of prior suits is an abuse of court process.

Court orders

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  1. 1.The 1st defendant's preliminary objection dated 1/6/2021 is allowed
  2. 2.The plaintiff's application dated 17/5/2021 is dismissed with costs
  3. 3.The instant suit is struck out for being res judicata and an abuse of court process
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application under Order 40 rules 1(a) and 2 and Order 51 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Joseph Maina Njoroge v Johnstone Mbugua Kinoro & another [2021] KEELC 1337 (KLR)", Case Analysis (2021). ELC Nakuru (Mau Summit/Molo Block 7/1036 Tayari suit) - notice of motion dated 17/5/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1337/eng@2021-10-28

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