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ELCDismissedNot stated in the judgment (Machakos ELC; predecessor suit Machakos ELC No. 22 of 2017, formerly Nairobi ELC No. 225 of 2014)· [2021] KEELC 4779 (KLR)

Mbukoni Holdings Limited & 16 others v Luvita & 3 others (Environment & Land Case E028 of 2021) [2021] KEELC 4779 (KLR)

Environment and Land Court
22 October 2021
OAO. A. Angote
2,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land suit because an earlier identical case had been dismissed for want of prosecution, and the law bars simply filing a fresh suit to restart.

What this practically means

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Executive summary

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The Plaintiffs, Mbukoni Holdings Limited and 16 Others, moved the court by Notice of Motion dated 26th February 2021 seeking injunctive orders restraining the Defendants from alienating, subdividing, transferring or dealing in L.R No. Mavoko Town Block 3/2057, and from placing beacons, demolishing houses or trespassing on it, pending the hearing of the suit. The 1st Plaintiff claimed to have purchased the suit property from the 2nd to 4th Defendants, paid the full purchase price, subdivided and sold it to over 200 people, and alleged that the Defendants fraudulently obtained fresh letters of administration, procured a replacement title and threatened eviction and demolition. The 1st Defendant raised a preliminary objection on lack of authority and deponed that the suit was an abuse of process following prior dismissed suits, including Machakos ELC No. 22 of 2017 (formerly Nairobi ELC No. 225 of 2014), which was dismissed on 9th April 2019 for want of prosecution and attendance. The 2nd to 4th Defendants denied the sale agreement, calling it a forgery, and termed the Plaintiffs trespassers. The court framed jurisdiction as the threshold issue, noting that a review application had been dismissed and a Notice of Appeal withdrawn. Relying on Order 12 Rule 6(2) of the Civil Procedure Rules and the Court of Appeal decisions in Njue Ngai and Cooperative Bank of Kenya, the court held that a suit dismissed for want of prosecution cannot be resuscitated by a fresh suit, which would be res judicata; the aggrieved party's remedy is review or appeal. The suit and application were dismissed with costs.

Key legal issues

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01

Effect of dismissal for want of prosecution and non-attendance on a subsequent fresh suit

Holding

The fresh suit is incompetent and res judicata; Order 12 Rule 6(2) prohibits a fresh suit where a suit was dismissed under rule 3 for want of prosecution and attendance

Reasoning

The court traced the history of Machakos ELC No. 22 of 2017, which was dismissed on 9th April 2019 because neither the plaintiffs nor their advocate were ready to prosecute the case and there was no indication the plaintiffs were in court. Review was dismissed and the Notice of Appeal withdrawn. Relying on Njue Ngai and Cooperative Bank decisions of the Court of Appeal, the court held the present suit offended res judicata and section 7 of the Civil Procedure Act.

p. 5
02

Jurisdiction as a threshold question

Holding

Having found the suit res judicata, the court lacked jurisdiction to entertain either the application or the entire suit

Reasoning

The court framed jurisdiction as a preliminary question before considering the merits of the injunction application. Because the suit was a fresh suit barred by Order 12 Rule 6(2), it was incompetent and bad in law, and the injunction application fell with it.

Legal principles established

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  • Where a suit is dismissed for want of prosecution and non-attendance, the affected party may only seek review or appeal; a fresh suit over the same cause of action is barred and res judicata under Order 12 Rule 6(2) and section 7 of the Civil Procedure Act

Court orders

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  1. 1.The Plaintiffs' suit and Application dated February 26, 2021 are dismissed
  2. 2.Costs of the Application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 12 Rule 6
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(c)(e); section 7

Cases cited (2)

  • Njue Ngai vs Ephantus Njiru Ngai & another
    (2016) eKLR
  • Cooperative Bank of Kenya vs Cosmas Mrombo Moka and another
    (2019) eKLR
Jurisdiction invoked
Order 40 and 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution; Sections 1A, 1B, 3A and 63(c)(e) of 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, "Mbukoni Holdings Limited & 16 others v Luvita & 3 others (Environment & Land Case E028 of 2021) [2021] KEELC 4779 (KLR)", Case Analysis (2021). Not stated in the judgment (Machakos ELC; predecessor suit Machakos ELC No. 22 of 2017, formerly Nairobi ELC No. 225 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4779/eng@2021-10-22

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