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ELCStruck OutNot stated in the extract (Kiambu CMELC No. 55 of 2019 referred to as the former suit)· [2021] KEELC 1933 (KLR)

Hannah Njeri Kariuki v Esther Njeri Ibongo & 2 others [2021] KEELC 1933 (KLR)

Environment and Land Court
24 September 2021
3,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Thika struck out an adverse possession land suit because the same ownership dispute had already been decided between the same parties in an earlier case.

What this practically means

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Executive summary

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The court dealt with two interlocutory matters: the 1st Defendant's Notice of Preliminary Objection dated 30th September 2020 and the Plaintiff's Notice of Motion dated 2nd December 2020 seeking an injunction restraining eviction from, and interference with, land parcel Githunguri/Kimathi/2014, pending determination of her Originating Summons for a declaration of ownership by adverse possession under Sections 7, 17 and 38 of the Limitation of Actions Act. The 1st Defendant objected that the suit offended Section 7 of the Civil Procedure Act, ownership having been determined in Kiambu CMELC No. 55 of 2019, where the Plaintiff's claim was struck out as time-barred. On the preliminary objection, the court, applying Mukisa Biscuits, Oraro v Mbaja, Khaemba and George Kamau Kimani, held that res judicata involves disputed facts requiring probing of evidence and cannot be raised by way of preliminary objection; the objection was dismissed. Nonetheless, the court went on to determine res judicata on the replying affidavit. Applying Section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, and Omondi v National Bank of Kenya, it found the issue of ownership of the same property (L.R 610, since subdivided) had been heard and finally determined, a time-barred dismissal amounting to a determination on merit. The suit was held res judicata and struck out entirely; the injunction application was dismissed as unmerited. As each party partly succeeded, each party was ordered to bear its own costs. Judgment dated 24th September 2021 at Thika, L. Gacheru, Judge.

Key legal issues

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01

Whether res judicata can be raised by way of preliminary objection

Holding

It cannot; it requires probing of evidence and disputed facts and must be raised by way of Notice of Motion with pleadings annexed

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, a preliminary objection must be a pure point of law on assumed facts. Determining whether issues in the two suits were directly and substantially in issue requires ascertainment of facts and probing of evidence, so the objection was incompetent and was dismissed.

p. 3
02

Whether the suit is res judicata

Holding

Yes; ownership of the same property was determined in Kiambu CMELC No. 55 of 2019, and a dismissal for being time-barred is a determination on merit

Reasoning

Applying Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai conjunctive elements, the court found the issue of proprietorship of the same land (L.R 610, subdivided into the new numbers) was directly and substantially in issue and finally determined between the same parties. Omondi v National Bank forecloses curing a time-barred dismissal by a fresh suit.

p. 5
03

Whether the Notice of Motion dated 2nd December 2020 for temporary injunction was merited

Holding

Not merited and dismissed entirely, as the suit itself is res judicata

Reasoning

Since the suit was struck out as res judicata, there was no suit capable of supporting interlocutory injunctive relief; the application fell with the suit.

p. 5

Legal principles established

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  • A preliminary objection cannot be raised on disputed facts requiring ascertainment by evidence; res judicata is such a matter
  • Parties cannot evade res judicata by adding other parties or causes of action in a subsequent suit; they must bring all their cases at once
  • A suit dismissed as time-barred has been heard and finally determined for purposes of res judicata

Court orders

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  1. 1.The Notice of Preliminary Objection dated 30th September 2020 is dismissed as not merited
  2. 2.The Notice of Motion Application dated 2nd December 2020 is dismissed entirely
  3. 3.The suit is struck out entirely as res judicata
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSections 7, 17, 38

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) 1 KLR 141
  • Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another
    (2014) EKLR
  • George Kamau Kimani & 4 Others v County Government of Trans Nzoia & Another
    (2014) eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 105 of 2017 ([2017] eKLR)
  • Omondi v National Bank of Kenya Limited and Others
    (2001) E.A 177
Jurisdiction invoked
Not expressly stated in the extract (original civil jurisdiction over land matter; suit brought under Sections 7, 17 and 38 of the Limitation of Actions 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, "Hannah Njeri Kariuki v Esther Njeri Ibongo & 2 others [2021] KEELC 1933 (KLR)", Case Analysis (2021). Not stated in the extract (Kiambu CMELC No. 55 of 2019 referred to as the former suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1933/eng@2021-09-24

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