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ELCStruck OutMachakos ELC No. (unspecified on record)· [2021] KEELC 3098 (KLR)

Fredrick Muthama Nzioka & another v Peter W Mathenge t/a Joman Timber Yard Hardware (Kwa Mathenge) [2021] KEELC 3098 (KLR)

Environment and Land Court
28 May 2021
OAO. A. Angote
2,871 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land ownership suit because the same dispute had already been decided, and members of a society were bound by that earlier ruling.

What this practically means

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Executive summary

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The Defendant brought a Notice of Motion dated 15th August 2019 seeking dismissal of the Plaintiffs' suit on the ground of res judicata, relying on the judgment of the Environment and Land Court in Machakos ELC No. 366 of 2009 (Mavoko Land Development Company Limited v Kasina Housing Scheme Society) delivered on 31st May 2019, in which the title L.R. No. 11895/27 (or new 11895/35) held by Kasina Housing Scheme Society was declared fake, null and void. The Plaintiffs, members of Kasina Housing Scheme Society, claimed ownership of plot number 3, a sub-division of L.R. No. 11895/35, and sought a declaration of ownership. The Defendant, a member of Mavoko Land Development Company Limited (registered proprietor of L.R. No. 25062), argued that the issues in this suit were directly and substantially in issue in the earlier suit between parties under whom the present parties claim. The court, applying Section 7 of the Civil Procedure Act and the Court of Appeal authorities on res judicata including KCB v Benjoh Amalgamated and John Florence Maritime Services, found that although the present parties sued in different capacities (as members rather than the corporate entities), they were litigating under the same title as the parties in the earlier suit. Since the Plaintiffs' claimed title derived from the nullified L.R. No. 11895/35, the suit was barred. The court allowed the application, dismissed the suit as res judicata, and ordered the Plaintiffs to pay the Defendant's costs of the suit.

Key legal issues

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01

Whether the suit is res judicata

Holding

Yes - the issues were directly and substantially in issue in Machakos ELC No. 366 of 2009 between parties under whom the present parties claim

Reasoning

The Plaintiffs' claimed title derives from Kasina Housing Scheme Society, whose title L.R. No. 11895/27/35 was declared null and void in the earlier judgment. The Defendant is a member of Mavoko Land Development Company Limited, the successful plaintiff in the earlier suit. The parties therefore litigate under the same title, though in different capacities, and the doctrine bars the present suit.

p. 4
02

Effect of the earlier declaration of nullity of L.R. No. 11895/35

Holding

The Plaintiffs' title, being a portion of L.R. No. 11895/35, suffers the same fate as the nullified mother title

Reasoning

In Machakos ELC No. 366 of 2009 the court found the re-survey by the Director of Surveys unlawful and the creation of L.R. Nos. 11895/27, 11895/33, 11895/34 and 11895/35 a nullity ab initio. The Plaintiffs derive their claim from a subdivision of 11895/35, so their title falls with it.

p. 4

Legal principles established

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  • Members of companies/societies who were not nominally parties to prior litigation may nonetheless be bound by res judicata where they litigate under the same title as the parties in the former suit

Court orders

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  1. 1.This suit is dismissed for being res judicata Machakos ELC. No. 366 of 2009
  2. 2.The Plaintiffs to pay to the Defendant the costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (10)

  • Kenya Commercial Bank Limited vs. Benjoh Amalgamated Limited & Another
    (2017) eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others
    (2007) eKLR
  • Mburu Kinyua vs. Gachini Tutu
    (1978) KLR 69
  • William Koross vs. Hezekiah Kiptoo Komen & 4 others
    (2015) eKLR
  • Lal Chand vs. Radha Kisham
    AIR 1977 SC 789
  • Benjoh Amalgamated Limited & Another vs. Kenya Commercial Bank Limited
    (2014) eKLR
  • John Florence Maritime Services Limited & Another vs. Cabinet Secretary for Transport & Infrastructure & Others
    Civil Appeal No. 42 of 2014 (2015) eKLR
  • Handerson vs. Handerson
    (1843) 67 ER 313
  • Kamunye & Others vs. Pioneer General Assurance Society Limited
    (1971) EA 263
  • James Njuguna Chui vs. John Njogu Kimani
    Nairobi Civil Appeal No. 322 of 2014 (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited); application brought under Section 7 of the Civil Procedure Act on 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, "Fredrick Muthama Nzioka & another v Peter W Mathenge t/a Joman Timber Yard Hardware (Kwa Mathenge) [2021] KEELC 3098 (KLR)", Case Analysis (2021). Machakos ELC No. (unspecified on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3098/eng@2021-05-28

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