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ELCPartially AllowedNot stated on the face of the judgment (suit filed by plaint dated 8/4/2016 in the High Court at Nairobi, later at Thika)· [2022] KEELC 542 (KLR)

Peter Ndukuthyo & 2 others v Westwood Properties Limited [2022] KEELC 542 (KLR)

High Court of Kenya (Environment and Land jurisdiction)
24 March 2022
BEB M Eboso
2,223 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a land dispute to proceed but ordered the suing women's group to deposit Kshs 1.5 million or the case dies automatically.

What this practically means

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Executive summary

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Maasai Village Self Help Women Group, through Peter Ndukuthyo, Patrick Manga Kamunyu and Adan Mohammad, sued as the absolute registered owner of Industrial Plot No G-Thika Municipality, seeking a permanent injunction, eviction and mesne profits against the defendant, whom they alleged was constructing on the land without consent. The defendant, asserting ownership of LR No 4953/2193 acquired in 2011 from Peter Mbuthia Mwaura, brought a notice of motion dated 28/9/2021 seeking striking out of the suit as res judicata and an abuse of process, or alternatively security for costs of Kshs 3,000,000. The application was unopposed; the plaintiffs elected not to respond or file submissions. The court framed two questions: res judicata and security for costs. On res judicata, it examined three preceding suits and found that the parties differed (the defendant was not a party to two of them) and the issues were not determined on merits, so the doctrine could not be conclusively upheld. It noted, however, that a joint surveyor's report in ELC No 116 of 2012 suggested the ground parcel claimed was the same as LR No 4953/2193, and that Gitumbi J had refused the plaintiffs leave to amend to change the property description. On security for costs, the court found the plaintiffs were possibly using different descriptions for the same property, subjecting the defendant to avoidable costs, and that the claim they had no known assets was uncontroverted. It ordered the plaintiffs to deposit Kshs 1,500,000 in court within 45 days, to be moved to a joint interest-earning account, to file a bound bundle of documents, and directed that failure to comply would result in automatic dismissal of the suit with costs to the defendant.

Key legal issues

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01

Whether the suit is res judicata given the three preceding suits

Holding

Res judicata cannot at this stage be conclusively upheld

Reasoning

The court examined each preceding suit. Thika CMCC No 842 of 2011 was withdrawn and did not involve the defendant. Nairobi HCCC (ELC) No 116 of 2012 concerned a differently described plot, though a joint surveyor's report suggested the same ground parcel. Nairobi ELC No 1185 of 2013 (formerly Kerugoya ELC No 419/2013) did not include the defendant. Since parties differed and issues were not determined on merits, the doctrine was not applied.

p. 2
02

Whether the plaintiffs should provide security for costs

Holding

A proper basis exists; the plaintiffs were ordered to deposit Kshs 1,500,000

Reasoning

The court found the plaintiffs had not been clear on the identity of the property they claim, had sought to amend the description of the suit property in a prior suit and been refused by Gitumbi J, and may have subjected the defendant to at least two suits over the same ground parcel. The uncontroverted claim that the Group had no known assets reinforced the need for security.

p. 3

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties or parties under whom they claim, litigating under the same title, before a competent court
  • Where the parties or the subject matter of a preceding suit differ, res judicata cannot be invoked
  • A court may order security for costs where a plaintiff appears to have no known assets and may be subjecting the defendant to avoidable multiplicity of suits

Court orders

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  1. 1.The plaintiffs shall, within 45 days, deposit in court Kshs 1,500,000 as security for costs of the defendant
  2. 2.Upon deposit, the parties' advocates shall within 30 days open a joint interest earning account where the money shall be transferred and held until the case is heard and determined
  3. 3.The plaintiffs shall, within 45 days, file and serve a single, bound, paginated and indexed bundle of pleadings, witness statements, and documentary evidence
  4. 4.In default of (a) or (c), this suit shall stand dismissed with costs to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7
Jurisdiction invoked
Original civil jurisdiction of the High Court over the land dispute; notice of motion dated 28/9/2021 under the Civil Procedure Act (res judicata and security for costs)

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, "Peter Ndukuthyo & 2 others v Westwood Properties Limited [2022] KEELC 542 (KLR)", Case Analysis (2022). Not stated on the face of the judgment (suit filed by plaint dated 8/4/2016 in the High Court at Nairobi, later at Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/542/eng@2022-03-24

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