Hannah Njeri Kariuki v Esther Njeri Ibongo & 2 others [2021] KEELC 1933 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether res judicata can be raised by way of preliminary objection
It cannot; it requires probing of evidence and disputed facts and must be raised by way of Notice of Motion with pleadings annexed
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.
Whether the suit is res judicata
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
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.
Whether the Notice of Motion dated 2nd December 2020 for temporary injunction was merited
Not merited and dismissed entirely, as the suit itself is res judicata
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 30th September 2020 is dismissed as not merited
- 2.The Notice of Motion Application dated 2nd December 2020 is dismissed entirely
- 3.The suit is struck out entirely as res judicata
- 4.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.