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ELCDismissedPetition dated 12th March, 2020· [2021] KEELC 4321 (KLR)

Polymarries Mbithe Mutua v Attorney General & 3 others [2021] KEELC 4321 (KLR)

Environment and Land Court
12 February 2021
6,723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land dispute petition because re-filing the same complaints without new issues abuses the court's process.

What this practically means

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Executive summary

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This Ruling of the Environment and Land Court at Machakos (O.A. Angote, J.) determines the Petitioner's Notice of Motion dated 29th May, 2020 seeking conservatory orders restraining the 2nd, 3rd and 4th Respondents from disposing of or interfering with land parcels Matungulu/Katine/2772, 2773 and 2774, pending determination of a constitutional Petition alleging violation of her rights to property and fair hearing. The Petitioner claimed to have bought the original parcel, Matungulu/Katine/2548, from the late Maweu Kavuu in 1994, and alleged that the parcel was unprocedurally subdivided pursuant to awards of the defunct Matungulu Land Dispute Tribunal adopted by the Resident Magistrate's Court in 2006, in proceedings conducted without notice to her. The Respondents filed a preliminary objection arguing that the Petition was res judicata, time barred and an abuse of process, citing prior proceedings including the Tribunal claims, Machakos HCCC No. 42 of 2009 (struck out by the same court in 2017) and Nairobi Judicial Review No. 567 of 2007 (withdrawn by the Petitioner in 2008). The court framed three issues: res judicata, limitation, and entitlement to conservatory orders. On the first, it held that because the prior suits were struck out and withdrawn respectively and never determined on the merits, the Petition was not res judicata. However, it found that the Petition raised no new issues and, filed three years after the 2017 ruling, constituted an abuse of the court process. The court declined to address limitation or conservatory orders, upheld the preliminary objection, and dismissed the entire Petition and the Application dated 29th May, 2020 with costs.

Key legal issues

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01

Whether the Petition is res judicata

Holding

The court held that res judicata does not apply because the prior suits were not heard and determined on the merits - one was withdrawn and the other struck out on preliminary points.

Reasoning

The court reviewed Section 7 of the Civil Procedure Act and case law on the elements of res judicata, which must be conjunctive. It found the Petitioner had previously filed Nairobi Judicial Review No. 567 of 2007 (withdrawn on 12th November, 2008) and Machakos HCCC No. 42 of 2009 (struck out). Since neither was determined on merit, the elements of res judicata were not satisfied. The court nonetheless treated the successive litigation on the same issues as abusive.

p. 7
02

Whether the Petition is an abuse of the court process

Holding

The Petition, which raised no new issues and was filed after prior proceedings on the same subject were withdrawn and struck out, is an abuse of the court process.

Reasoning

Relying on the definition of abuse of process in Satya Bhama Gandhi vs. Director of Public Prosecutions, the court found that the Petitioner had instituted a multiplicity of actions on the same subject matter. The earlier ruling in Machakos HCCC No. 42 of 2009 had already held that the proper route to challenge the Tribunal's award was an appeal or judicial review, and the Petitioner did not appeal that ruling but instead filed the present Petition three years later.

p. 8
03

Whether the Petition is time barred and whether conservatory orders should issue

Holding

The court declined to determine these issues because the Petition was dismissed as an abuse of process.

Reasoning

Having found the Petition abusive, the court considered it unnecessary to address limitation or the entitlement to conservatory orders. The Notice of Preliminary Objection dated 20th July, 2020 therefore succeeded on the abuse-of-process ground, and the Petition and the Application dated 29th May, 2020 were dismissed with costs.

p. 8

Legal principles established

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  • A suit that was struck out or withdrawn was not heard and determined on the merits, so res judicata does not apply to a later suit
  • Re-litigating the same issues in successive suits that do not raise new issues is an abuse of the court process even where the earlier suits were not determined on the merits
  • Res judicata is applicable in constitutional petitions but must be invoked sparingly and only in the clearest of cases

Court orders

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  1. 1.The entire Petition is dismissed with costs
  2. 2.The Application dated 29th May, 2020 is dismissed with costs
  3. 3.Merit found in the Respondents' Notice of Preliminary Objection dated 20th July, 2020

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 7
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 50
  • Land Disputes Tribunal Actnull
  • Law Reform Actnull
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(8)

Cases cited (19)

  • Abok James Odera vs. John Patrick Muchira
    Civil Application No. 49 of 2001
  • Loise Mumbi Gachinga & another vs. Stephen Kiiru Mugo & another
    (2014) eKLR
  • Peter Gicharu Ngige vs. Kiiru Chomba & 3 others
    [2004] eKLR
  • Safepak Limited vs. Henry Wambega & 11 others
    [2019] eKLR
  • D.T Dobie & Company Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • The Independent Electoral and Boundaries Commission vs. Maina Kiai & 5 others
    [2017] eKLR
  • Gathoni vs. Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Mehta vs. Shah
    [1965] E.A 321
  • John Florence Maritime Services Ltd vs. Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR; Civil Appeal No. 42 of 2014
  • Kenya Commercial Bank Limited vs. Benjoh Amalgamated Limited & Another
    (2017) eKLR
  • Mburu Kinyua vs. Gachini Tutu
    (1978) KLR 69
  • William Koross vs. Hezekiah Kiptoo Komen & 4 others
    (2015) eKLR; Civil Appeal No. 223 of 2013
  • Lal Chand vs. Radha Kisham
    AIR 1977 SC 789
  • Benjoh Amalgamated Limited & Another vs. Kenya Commercial Bank Limited
    (2014) 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
    Court of Appeal Nairobi Civil Appeal No. 322 of 2014 (2017) eKLR
  • Florence Nyaboke Machavi vs Mogere Amosi Ombui & 2 others
    (2014) eKLR
  • Satya Bhama Gandhi vs. Director of Public Prosecutions & 3 others
    [2018] eKLR
Jurisdiction invoked
Constitutional Petition under the Constitution of Kenya (alleging violation of Articles 40 and 50), heard on a Notice of Motion seeking conservatory orders

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, "Polymarries Mbithe Mutua v Attorney General & 3 others [2021] KEELC 4321 (KLR)", Case Analysis (2021). Petition dated 12th March, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4321/eng@2021-02-12

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