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ELCDismissedNot stated in the judgment· [2021] KEELC 3174 (KLR)

Elizabeth Joseph Hakimu (Suing on behalf of Joseph Hakimu Chifu) v Mohamed Hamed Abdalla [2021] KEELC 3174 (KLR)

Environment and Land Court
19 May 2021
CYC.K. Yano
1,176 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a case struck out for non-compliance doesn't count as decided, so the same land dispute can be filed again.

What this practically means

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Executive summary

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The defendant moved the court by Notice of Motion dated 16th October 2020 seeking to have the plaintiff's suit struck out and/or dismissed with costs on the ground that it was res judicata, the same parties having litigated identical issues in Mombasa HCCC No. 77 of 1993 (OS), in which Hayanga J delivered a ruling on 24th November 1998 striking out the originating summons with costs. The defendant contended that the former suit was determined by a court of concurrent competent jurisdiction, that no appeal or review followed, and that relitigating the matter was an abuse of process. The plaintiff opposed, questioning the authenticity of the orders served and submitting that the former suit was never heard and finally decided on the merits. The court framed the sole issue as whether the suit was res judicata. It reproduced Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act. Examining the record, the court noted that although the 1994 decree in the deceased's favour existed, it was set aside in 1995, and the originating summons was ultimately struck out on 24th November 1998 for the deceased's failure to comply with a court order and in his advocate's absence. While the parties were the same, the court held that a suit struck out for non-compliance was not fully argued and its issues were not finally determined, so the requirements of Section 7 were not satisfied. The application was dismissed with costs on 19th May 2021.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act

Holding

The application fails because the former suit, having been struck out for non-compliance, was not heard and finally decided on the merits

Reasoning

The court set out Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act. It accepted that the parties in the former suit were the same, but examined the record: the 1994 decree was set aside in 1995 and the originating summons was ultimately struck out in November 1998 for the deceased's failure to comply with an order. Since the issues were never addressed and determined, the res judicata doctrine was not attracted and the suit could proceed.

p. 2

Legal principles established

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  • A suit struck out for non-compliance with a court order is not 'heard and finally decided' for purposes of res judicata under Section 7 of the Civil Procedure Act
  • Striking out for non-compliance means the suit was not fully argued and the issues were not finally determined

Court orders

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  1. 1.The Notice of Motion dated 16th October 2020 seeking to strike out/dismiss the plaintiff's suit is dismissed
  2. 2.The defendant to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court Act No. 19 of 2011Section 28

Cases cited (9)

  • Peter Chepkochoi Mitei –v- Esther Jelagat Ng’eny & 3 Others
    (2014) eKLR
  • Karia and Another –v- Attorney General and Others
    (2005) 1 EA 83
  • Edwin Thuo –v- Attorney General and Another
    Petition No. 212 of 2012
  • Kenya Hotel Properties Limited –v- Willisden Investments Limited & 4 Others
    (2013) eKLR
  • Kenya Commercial Bank Ltd –v- Benjoh Amalgamated Ltd
    (2017) eKLR
  • State of Maharashtra and Another –v- National Construction Company, Bombay
    Supreme Court Civil Appeal No. 1497 of 1996
  • Cosmas Mrombo Moka –v- Co-operative Bank of Kenya Ltd & Anor
    Mombasa HCCC No. 7 of 2018
  • MWK –v- AMW
    Kiambu HCCC No. 5 of 2016 (OS)
  • Michael Siror –v- Jackson Koech
    Eldoret C.A. No. 53 of 2016
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011 (original jurisdiction over land disputes)

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, "Elizabeth Joseph Hakimu (Suing on behalf of Joseph Hakimu Chifu) v Mohamed Hamed Abdalla [2021] KEELC 3174 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3174/eng@2021-05-19

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