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ELCStruck OutNot stated in judgment· [2021] KEELC 2252 (KLR)

William Wanyama Ndege v Leonora Nerima Karani & another [2021] KEELC 2252 (KLR)

Environment and Land Court
15 July 2021
AOA. Omollo
1,199 words in judgment
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The bottom line

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You cannot file a new lawsuit over a land dispute already decided by a Kenyan court; grievances about how a judgment was executed belong in the executing court.

What this practically means

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Executive summary

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The defendants raised a preliminary objection that the plaintiff's suit - seeking demolition of a structure and a permanent injunction in relation to LR No. BUNYALA/BUKOMA/2135 - was res judicata, having been determined in Busia High Court Civil Case No. 40 of 1997 (O.S.) and Kisumu Civil Appeal No. 142 of 2007, in which the Court of Appeal on 28 November 2012 allowed the 1st defendant's adverse possession claim to 0.3 ha out of LR No. BUNYALA/BUKOMA/1433. The parties filed written submissions by agreement. The plaintiff argued that his complaint was trespass on the new parcel 2135, a new cause of action arising during the pendency of the appeal, and that res judicata could not be resolved without evidence, including testimony of the County Surveyor regarding alleged fraud and collusion in the subdivision. The court, applying Mukisa Biscuits on the nature of a preliminary objection and the five-element res judicata test under section 7 of the Civil Procedure Act, found the parties (save the 2nd defendant) and issues identical to the former suit. It held that the present cause of action arose from execution of the Court of Appeal decree, which created the new parcel numbers, and that under section 34(1) and (2) of the Civil Procedure Act all questions relating to execution, discharge or satisfaction of a decree must be determined by the executing court, not by separate suit. The preliminary objection was allowed and the plaintiff's suit struck out with costs to the defendants.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata because the parties (except the 2nd defendant) and the issues are the same as in High Court Civil Case No. 40 of 1997 (O.S.) and its appeal, Civil Appeal No. 142 of 2007, and the execution of that decree, not a new cause of action, gave rise to the present claim.

Reasoning

The court applied the five-part res judicata test from section 7 of the Civil Procedure Act and case law. It found the Court of Appeal judgment involved the same parties (save the 2nd defendant) and title. The present suit's cause of action arose from execution of that decree, creating new parcel numbers; under section 34(1) and (2), such questions belong to the executing court, not a separate suit. Hence the suit was struck out with costs.

p. 2

Legal principles established

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  • All questions arising between parties to a decree relating to its execution, discharge or satisfaction must be determined by the court executing the decree, not by a separate suit.
  • A cause of action occasioned by the execution of a judgment in a former suit is not a new cause of action for the purposes of res judicata.

Court orders

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  1. 1.The preliminary objection is allowed
  2. 2.The plaintiff's suit is struck out
  3. 3.Costs to the defendants

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsections 34(1) & (2)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Limited
    (1969) EA. 696
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • Eunice Karimi Kibunja V. Mwirigi M’ringera Kibunja
    (1996) eKLR
  • Wilson Okumu Kaburu V. Joseph Wanjala Oduba
    Busia ELC No. 82 of 2018
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; challenged by preliminary objection on res judicata under section 7 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, "William Wanyama Ndege v Leonora Nerima Karani & another [2021] KEELC 2252 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2252/eng@2021-07-15

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