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ELCStruck OutPlaint dated 1st July 2019 (ELC, Kerugoya)· [2021] KEELC 3820 (KLR)

Grace Wainoi Munene v Geoffrey Karubiu Kibuchi & 3 others [2021] KEELC 3820 (KLR)

Environment and Land Court
19 March 2021
ECE.C. Cherono
2,526 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 struck out a 2019 land trust claim because the same dispute had already been conclusively decided decades earlier.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 1st July 2019 seeking a declaration that the defendants hold land parcel MUTIRA/KAGUYU/1614 in trust for themselves and the plaintiff, an order for determination of trust and registration in the plaintiff's name, sub-division into two 2.5-acre portions, and costs. The defendants raised a preliminary objection dated 11th October 2019 on the ground that the suit was res judicata. They showed that in 1995 Jeniffer Wangeci Kibuchi, the defendants' mother, sued the plaintiff's husband in HCCC No. 60 of 1995; the matter was referred to the Land Disputes Tribunal at Baricho, Kirinyaga, whose award of 9th October 1998 found the suit land belonged to her, found no trust, and ordered the plaintiff's husband's family to vacate. The award was adopted as judgment in SRMCC Award No. 77 of 1999 (Nyeri), the appeal in HCCA No. 23 of 2000 (Nyeri) was dismissed, and in Succession Cause No. 2844 of 2004 Musyoka J held that no trust was established and that the trust issue had already been determined by the Tribunal. These averments were uncontroverted. Applying Section 7 of the Civil Procedure Act and the conjunctive test in the Maina Kiai case, the court found all res judicata elements satisfied. The preliminary objection was upheld and the plaint dated 1st July 2019 was struck out with costs to the defendants.

Key legal issues

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01

Whether the plaintiff's suit is res judicata

Holding

The suit is res judicata because the issue of trust over the suit property was directly and substantially in issue and conclusively determined in the Land Disputes Tribunal award adopted as the judgment of the Magistrate's Court in SRMCC Award No. 77 of 1999, affirmed on appeal in HCCA No. 23 of 2000, and confirmed in the ruling in Succession Cause No. 2844 of 2004

Reasoning

The court compared the claim in the plaint with the Tribunal award adopted as judgment, the dismissed appeal and the succession ruling by Musyoka J, finding the same parties litigating under the same title over the same trust issue. Those averments were not controverted by plaintiff's counsel. The preliminary objection was therefore upheld.

p. 4

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 those under whom they claim, same title, heard and finally determined, and the former court competent
  • Res judicata bars litigants from relitigating the same matters under different masks; it allows a litigant only one bite at the cherry

Court orders

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  1. 1.The Notice of Preliminary Objection dated 11th October 2019 is upheld
  2. 2.The plaintiff's suit commenced by a plaint dated 1st July 2019 is struck out for being res judicata
  3. 3.Costs of the suit to the defendants

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure ActSection 6
  • Environment and Land Court ActSection 13(1)

Cases cited (3)

  • Owners of the Motor Vessel "Lilians" Vs Caltex Oil (Kenya) Limited
    (1989) K.L.R 1
  • The Independent Electoral and Boundaries Commission Vs Maina Kiai & Others
    (2017) e K.L.R
  • Kenya Commercial Bank Limited Vs Muiri Coffee Estate Limited & Another
    (2016) e K.L.R
Jurisdiction invoked
Section 13(1) of the Environment and Land Court 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, "Grace Wainoi Munene v Geoffrey Karubiu Kibuchi & 3 others [2021] KEELC 3820 (KLR)", Case Analysis (2021). Plaint dated 1st July 2019 (ELC, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3820/eng@2021-03-19

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