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ELCPartially AllowedELC Case (Notice of Motion dated 1st October 2020) - number not stated· [2021] KEELC 2304 (KLR)

Simon Peter Waweru Maina v Munyaka Kuna Company Limited [2021] KEELC 2304 (KLR)

Environment and Land Court
15 July 2021
LKL. KOMINGOI
2,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land suit because it re-fought disputes already decided, reinforcing that recycled litigation will be stopped.

What this practically means

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Executive summary

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This is a ruling on the defendant's Notice of Motion dated 1st October 2020, brought under Order 2 rule 15(1)(b), (c) and (d) of the Civil Procedure Rules 2010 and sections 1A, 1B, 3 and 3A of the Civil Procedure Act, seeking that the plaintiff's plaint be struck out and judgment entered for the defendant, with costs. The defendant, Munyaka Kuna Company Ltd, argued that the plaint was scandalous, frivolous and vexatious, would embarrass the fair trial of related succession proceedings (HC P & A 625 of 2009, Nairobi) involving the estate of Domenico Demasi, and was an abuse of process, being res judicata. It relied on the judgment in ELC 107 of 2011 (delivered 25th May 2018), in which the defendant was declared owner of six acres out of LR No 42/11 by constructive trust and adverse possession, and on a ruling by Justice Onyiego nullifying and cancelling the plaintiff's titles LR 42/32 and 42/33. The plaintiff, Simon Peter Weru Maina, opposed, saying he purchased the properties from Vinzenzo Bernado Demasi, administrator of the estate, took possession and developed them, and that striking out should be used sparingly. Komingoi J applied the Court of Appeal's guidance in Kivanga Estates Ltd v National Bank of Kenya Ltd and the res judicata principles in IEBC v Mama Kiai and Diocese of Eldoret Trustees. Holding that the subject matter and parties were the same as in the previous litigation, the court found the suit res judicata and an abuse of process, struck out the plaint with costs to the defendant, and ordered the plaintiff to bear the costs of the application.

Key legal issues

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01

Whether the plaint should be struck out as scandalous, frivolous, vexatious, prejudicial or an abuse of process under Order 2 rule 15(1)

Holding

Yes - the plaint was struck out because the suit is res judicata and an abuse of the court process

Reasoning

The defendant had already been declared owner of six acres out of LR No 42/11 in ELC 107 of 2011, and the plaintiff's titles LR 42/32 and 42/33 had been nullified and cancelled in Succession Cause No 625 of 2009. The subject matter of this suit is the same as in the previous suits between the same parties; the claim that the issues were not previously adjudicated cannot stand. The suit re-opens litigated issues and is an abuse of process.

p. 3

Legal principles established

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  • Res judicata bars re-litigation of matters directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally decided by a competent court
  • Adding or subtracting litigants does not sanitize a suit that is substantially related to a previous suit with the same subject matter from the doctrine of res judicata

Court orders

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  1. 1.That the plaint filed by the plaintiff be struck out with costs of the defendant/applicant
  2. 2.That costs of this application be borne by the plaintiff/respondent
Jurisdiction invoked
Order 2 rule 15(1)(b), (c) & (d) of the Civil Procedure Rules 2010; sections 1A, 1B, 3 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, "Simon Peter Waweru Maina v Munyaka Kuna Company Limited [2021] KEELC 2304 (KLR)", Case Analysis (2021). ELC Case (Notice of Motion dated 1st October 2020) - number not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2304/eng@2021-07-15

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