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ELCStruck OutNot stated in judgment (Notice of Motion dated 18th August 2020; Plaint filed 24th August 2020)· [2021] KEELC 2357 (KLR)

Mwadzaya Wachanda Clan Welfare Registered Trustees & 58 others v Petrol Oil Kenya Ltd & 6 others [2021] KEELC 2357 (KLR)

Environment and Land Court
30 July 2021
5,611 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a clan's land suit because the same family had already lost the same dispute in multiple earlier cases — you cannot relitigate a settled matter.

What this practically means

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Executive summary

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The Plaintiffs, 59 members of the Mwadzaya Wachanda Clan of the Duruma Tribe, sued seven Defendants seeking a temporary injunction restraining eviction from Kilifi/Madzimbani/Mitangoni/160 and its sub-divisions, pending a suit claiming declarations that titles issued to the 1st to 4th Defendants were fraudulent, rectification of the register, demarcation of the 2nd Defendant's share, a permanent injunction and damages for trespass. The 1st Defendant, Petrol Oil Kenya Ltd, which had purchased six acres from the 2nd Defendant in 2017, opposed the application and raised a preliminary objection that the suit was res judicata, divesting the Court of jurisdiction. The Court traced the long litigation history: the Kaloleni Land Disputes Tribunal award of 1998 in favour of the 2nd Defendant's family, its adoption as a court order, dismissed appeals and judicial review proceedings, adjudication objections and a Ministerial appeal, all resolved against the Plaintiffs' representatives. The Court held that although the current Plaintiffs were not all parties to the prior suits, they litigated under the same title as beneficial or historical owners, and the registration of the 1st Plaintiff as a trust in 2015 could not evade res judicata. The suit was found to run afoul of Section 7 of the Civil Procedure Act, to be res subjudice two pending Mombasa suits, and an abuse of process. The Preliminary Objection was upheld, the suit struck out with costs.

Key legal issues

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01

Whether the suit is res judicata

Holding

Yes - the ownership of the suit property has been litigated and determined repeatedly since 1998 in favour of the 2nd Defendant, and the Plaintiffs and their representatives litigated under the same title throughout.

Reasoning

The court traced at least eight prior litigations from the Kaloleni Land Disputes Tribunal award of 1998 through High Court appeals, judicial review, adjudication objections and a Ministerial appeal, all decided against the Plaintiffs' side. Although not all Plaintiffs were parties, they were relatives representing the same family claim under the same title. Registering the trustee body in 2015 did not cure res judicata.

p. 7
02

Whether the suit is an abuse of the Court process

Holding

Yes - the suit was aimed at embarrassing and harassing the Defendants after repeated failures, and was also res subjudice two pending suits.

Reasoning

Having been unsuccessful in the Tribunal, High Court, Provincial Appeals Tribunal, adjudication objection and Ministerial appeal, the Plaintiffs re-litigated the same claim under a newly registered trust. The court also noted the suit overlapped with pending Mombasa HCCC No. 326 of 2007 and HCCC No. 563 of 2011, compounding the abuse.

p. 7
03

Whether the temporary injunction could issue

Holding

No - with the suit struck out, no injunctive relief could be granted; the 2nd Defendant was free to alienate the land.

Reasoning

Since prior decisions since 1998 established the 2nd Defendant as the rightful proprietor, there was nothing prohibiting his alienation of portions to the 1st, 3rd and 4th Defendants. The injunction application could not survive the striking out of the suit.

p. 7

Legal principles established

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  • For res judicata to apply, five elements must be satisfied conjunctively: the matter directly and substantially in issue; same parties or parties under whom they claim; litigating under the same title; heard and finally determined; before a competent court.
  • Parties cannot evade res judicata by re-packaging a resolved cause of action as a new suit.
  • Once land adjudication remedies are exhausted, a party may only return to the High Court by judicial review, not a fresh claim.
  • Litigation must come to finality to protect parties from being vexed by multiplicity of suits.

Court orders

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  1. 1.The Preliminary Objection dated 15th September 2020 upheld
  2. 2.The suit struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Adjudication ActSections 26 and 29

Cases cited (9)

  • Independent and Electoral Boundaries Commission –vs- Maina Kiai & 5 Others
    (2017) eKLR
  • Edwin Thuo –vs- Attorney General & Another
    Nairobi Petition No. 212 of 2012 (2012) eKLR
  • Mombasa HCCC No. 326 of 2007; Ndurya Katana –vs- Said Badi Zembe
  • Mombasa High Court Misc Civil Application No. 172 of 2009; Mohamed Menza & Others –vs- Mwahanje Zembe & Zaidi Zembe Badi & Another
  • Kaloleni SRMCC Case No. 23 of 1998; Mwahanje Zembe & Zaidi Zembe Badi –vs- Ndurya Katana
  • Mombasa High Court Civil Appeal No. 45 of 1998; Ndurya Katana –vs- Kaloleni Land Dispute Tribunal Case No. 25 of 1998
  • Mombasa HCCC No. 563 of 2011
  • Appeal No. 301 of 2004, Coast Provincial Land Disputes Appeals Tribunal
  • Appeal Case No. 216 of 2017; David Munyika Dalu & Others –vs- Saidi Zembe Badi
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution; suit struck out under Section 7 of the Civil Procedure Act (res judicata)

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, "Mwadzaya Wachanda Clan Welfare Registered Trustees & 58 others v Petrol Oil Kenya Ltd & 6 others [2021] KEELC 2357 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 18th August 2020; Plaint filed 24th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2357/eng@2021-07-30

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