Rono & another (Suing as the legal representatives and administrators of the Estate of the Late Mathias Kimnyole Langat) v Cove Investments Limited (Environment & Land Case 95 of 2019) [2022] KEELC 104 (KLR)
The bottom line
#A Kenyan court struck out both sides' land claims because the same dispute over the same parcel had already been decided in an earlier case between the same parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit and counterclaim were res judicata vis-à-vis Nakuru ELC Petition No. 360 of 2017
Both the suit and the counterclaim were res judicata; the ownership of the suit property and the question of the parties' possession and compensation were directly, substantially or by necessary implication dealt with in the former suit between the same parties, heard on the merits by a competent court.
The subject matter in the petition and this suit was the same parcel of land and the parties substantially the same. The petition was heard partly by oral testimony and partly by affidavit evidence, and judgment was rendered by a court with jurisdiction. Explanation 4 to section 7 deems matters which might and ought to have been raised in the petition to have been in issue; the claim for compensation for unlawful use fell squarely within this and is barred.
Whether the Plaintiffs could argue that the claim for loss of earnings from conversion could not have been urged in the constitutional petition
No. The court distinguished the authorities relied on by the Plaintiffs and held that, by acquiescence, the Plaintiffs allowed the petition court to determine non-constitutional questions; their only recourse was appeal, which they in fact pursued.
The petition dealt with the constitutionality of sections 6 and 8 of the Land Control Act among other prayers, and the Plaintiffs did not object to the court determining the non-constitutional questions. Their conduct amounted to acquiescence, and the decision in the petition addressed the alleged unlawful interruption of possession, which could not found a fresh claim for conversion.
Whether the suit was frivolous, vexatious and an abuse of court process
Yes. Instituting a fresh suit over the same subject matter between the same parties after determination in the former suit is an abuse of process, falling within the illustrations in Sarak v Kotoye adopted in Muchanga Investments.
The court adopted the definition of abuse of process from Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd, including the Nigerian authorities, and found the circumstances of multiplicity of actions on the same subject matter between the same parties applicable, rendering the suit an abuse of the process of the court.
Whether judgment could be entered on admission in the counterclaim
Not determined on its merits; the counterclaim was itself struck out as res judicata, so no judgment on admission was entered.
Although the Defendant sought judgment on admission under Order 13 Rule 2, the court found the counterclaim raising adverse possession was res judicata because ownership had already been determined in the petition on the basis of constructive trust and proprietary estoppel; the court could not make another ownership decision based on adverse possession.
Legal principles established
#- A litigant cannot re-litigate, through a fresh suit or constitutional petition before a court of concurrent jurisdiction, matters which were or ought to have been determined in earlier proceedings; the remedy is appeal or review.
- Under Explanation 4 to section 7 of the Civil Procedure Act, any matter which might and ought to have been made a ground of defence or attack in a former suit is deemed directly and substantially in issue in that suit.
- The elements of res judicata are conjunctive, not disjunctive, and all must be present for the bar to be upheld.
Court orders
#- 1.The suit and the counterclaim are struck out.
- 2.No order as to costs.
- Jurisdiction invoked
- Articles 159 and 165 of the Constitution and sections 7 and 27 of the Civil Procedure Act (Cap. 21); Order 2 Rule 15(1)(b)(c)(d), Order 13 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rono & another (Suing as the legal representatives and administrators of the Estate of the Late Mathias Kimnyole Langat) v Cove Investments Limited (Environment & Land Case 95 of 2019) [2022] KEELC 104 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/104/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.