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ELCDismissedNot stated in judgment (application dated 12th January 2021)· [2021] KEELC 3836 (KLR)

Richard Karugu v Daivi Kiprotich Arap Too [2021] KEELC 3836 (KLR)

Environment and Land Court (not expressly named in the excerpt; single Judge sitting at Kakamega)
24 March 2021
NMN.A. Matheka
721 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an attempt to relitigate a land dispute through a fresh suit, reinforcing the ban on duplicate court cases.

What this practically means

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Executive summary

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By a Notice of Motion dated 12th January 2021, brought under Order 9(2)(a) of the Civil Procedure Rules 2010 and Sections 3A and 63(e) of the Civil Procedure Act, the applicant sought leave to file and conduct a civil suit seeking eviction of the respondent from land parcel Kakamega/Sergoit/44, with costs in the cause. The applicant's supporting affidavit asserted that the property was registered in the name of Wilson Kingori Wamburi (deceased) in 1979; that after his death the respondent filed several suits against the deceased intending to fraudulently transfer the property to himself; that the executor, Beverly Wamburi, had donated a power of attorney to the applicant to deal with the property; and that the respondent had transferred the property to himself in 2016 using a vacated court order and was occupying it while issuing threats. The court, considering the submissions, noted that the subject matter had already been litigated elsewhere and framed the question as whether the intended suit was res judicata or sub judice. Relying on Sections 6 and 7 of the Civil Procedure Act, the court held that the applicant was attempting to obtain leave irregularly, and found the application frivolous, vexatious and a waste of the court's time. The application was dismissed forthwith, with no orders as to costs. Judgment was delivered at Kakamega on 24th March 2021 by N.A. Matheka, Judge.

Key legal issues

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01

Whether leave should issue for an intended suit touching land already the subject of other proceedings

Holding

Leave was refused; the application was an irregular attempt to relitigate matters already before the courts

Reasoning

The court observed that the subject property and the dispute over its transfer had been litigated elsewhere. It invoked Sections 6 and 7 of the Civil Procedure Act on sub judice and res judicata, and concluded that the applicant was attempting to sneak in leave irregularly rather than genuinely seeking access to the court. The application was therefore found frivolous, vexatious and a waste of judicial time, warranting dismissal.

p. 2

Legal principles established

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  • A court shall not proceed with a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties (sub judice - Section 6, Civil Procedure Act)
  • A court shall not try a suit or issue already directly and substantially in issue in a former suit between the same parties heard and finally decided by a competent court (res judicata - Section 7, Civil Procedure Act)

Court orders

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  1. 1.The application dated 12th January 2021 seeking leave to file a civil suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9(2)(a)
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 63(e)
  • Civil Procedure Act (Cap 21)Section 6
  • Civil Procedure Act (Cap 21)Section 7
Jurisdiction invoked
Order 9(2)(a) of the Civil Procedure Rules 2010 and Sections 3A & 63(e) of the Civil Procedure Act (Cap 21)

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, "Richard Karugu v Daivi Kiprotich Arap Too [2021] KEELC 3836 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 12th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3836/eng@2021-03-24

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