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ELCDismissedELC Appeal/ Application arising from Murang'a CMCC No. 246 of 2013· [2021] KEELC 4016 (KLR)

Charles Mwangi Mburu & 2 others v Peter Ndungu Kariuki (suing as the Administrator of the Estate of Primua Oloo Obwayo) [2021] KEELC 4016 (KLR)

Environment and Land Court
11 March 2021
JKJ.G. Kemei
1,206 words in judgment
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The bottom line

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The Environment and Land Court dismissed a repeat application to undo a land judgment, confirming that recycling an already-decided request is barred.

What this practically means

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Executive summary

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The Applicants, sued in Murang'a CMCC No. 246 of 2013, sought by an application filed with a memorandum of appeal dated 13/1/2021 to set aside the ruling of 31/12/2020 and the ex parte judgment of 13/12/2018 in that suit, to revoke title deeds for Makuyu/Kariaini Block III/19 and III/64 issued in the name of Primus Oloo Obwayo (deceased), and to place a restriction on dealings in the two parcels pending retrial. Their advocate, Pauline Mwaniki, argued that discovery of new facts linking the suit parcels to a succession cause, HCCC No. 34 of 2017, justified the setting aside. The Respondent opposed, contending that judgment had been executed two years earlier, the decree was adopted by consent, titles issued in compliance with court orders, and the advocate had made endless applications. J.G. Kemei J dismissed the application. His Lordship found it word for word identical to the application dated 7/2/2020 dismissed by Hon Atiang Mitullah SPM on 31/12/2020 - the very ruling under appeal - and therefore res judicata under Section 7 of the Civil Procedure Act, applying the elements in IEBC v Maina Kiai and the rationale in John Florence Maritime Services as quoted in Accredo AG v Uccelli. The court further held the orders sought, including revocation of titles, were substantive and incapable of being granted on an application. The application was dismissed with costs to the Respondent. A separate appeal against the ruling of 31/12/2020 remains pending before the same court.

Key legal issues

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01

Res judicata

Holding

The application is res judicata as it duplicates word for word the application dated 7/2/2020 which was heard and dismissed by the lower court on 31/12/2020

Reasoning

The court applied Section 7 of the Civil Procedure Act and the elements set out in IEBC v Maina Kiai: the same issue between the same parties under the same title was directly and substantially in issue and was heard and finally determined by a competent court. The impugned ruling is also the subject of a pending appeal before the same court.

p. 2
02

Competence of the orders sought

Holding

Revocation of title deeds and setting aside of a judgment are substantive orders that cannot be granted on an application of this nature

Reasoning

The court held that beyond the res judicata bar, the prayers - including revocation of titles issued in compliance with court orders - are substantive in nature and incapable of being granted through the application moved, an independent ground for dismissal.

p. 2

Legal principles established

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  • An application identical in substance to one already heard and finally determined by a competent court between the same parties is barred by res judicata under Section 7 of the Civil Procedure Act
  • Substantive orders such as revocation of title cannot be granted on an application

Court orders

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  1. 1.The application dated 13/1/2021 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR Nairobi Court of Appeal Appeal 105 of 2017
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Accredo AG & 3 others v Steffano Uccelli & another
    [2019] eKLR Civil Appeal 43 of 2018
On appeal from
Chief Magistrate's Court, Murang'a
CMCC No. 246 of 2013
Jurisdiction invoked
Not expressly stated; appeal against ruling in CMCC No. 246 of 2013 under the Civil Procedure 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, "Charles Mwangi Mburu & 2 others v Peter Ndungu Kariuki (suing as the Administrator of the Estate of Primua Oloo Obwayo) [2021] KEELC 4016 (KLR)", Case Analysis (2021). ELC Appeal/ Application arising from Murang'a CMCC No. 246 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4016/eng@2021-03-11

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