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ELCDismissedNyahururu ELC No. 33 of 2017 (originating summons dated 26th October 2007)· [2022] KEELC 624 (KLR)

Julius Daudi Gatambia & another v Mary Wanjiru Macharia (sued as the legal Representative of the estate of the late James Macharia Gichure) & 6 others [2022] KEELC 624 (KLR)

Environment and Land Court
17 March 2022
1,531 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a land claim dismissed for delays, never actually heard on its merits, can be filed afresh.

What this practically means

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Executive summary

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By an originating summons dated 26th October 2007 under Sections 13(1), 37 and 38 of the Limitation of Actions Act and Order XXXVI Rule 3D of the former Civil Procedure Rules, the Plaintiffs sought orders of adverse possession over portions of Titles Nyandarua/Kirima/713 and 714, the 1st Plaintiff claiming 2.25 acres and the 2nd Plaintiff 3 acres. The 1st and 2nd Defendants filed a notice of motion dated 2nd July 2021 under Section 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules, 2010, seeking striking out of the suit as res judicata and an abuse of process, relying on six prior Nakuru suits between the parties or their predecessors. The Plaintiffs countered that their adverse possession claim had never been determined on merit: the 1990 suit failed for want of service, the 2003 suit abated, and the 2007 originating summons was dismissed only for want of prosecution after the High Court's judgment of 10th May 2011 allowed the claim to be brought separately, with the file subsequently going missing and the case being transferred from Nakuru to the ELC at Nyahururu. The court framed two issues: res judicata and abuse of process. Holding that the Plaintiffs' claim had never been adjudicated on merit and that the instant file was the same originating summons, the court found no res judicata; the abuse argument, resting solely on res judicata, also failed. The motion was dismissed with costs in the cause, and the parties were directed to take a hearing date immediately.

Key legal issues

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01

Whether the suit is res judicata given prior suits between the parties

Holding

The suit is not res judicata because the Plaintiffs' adverse possession claim was never heard and determined on merit; the prior O.S. was dismissed for want of prosecution and the present file is the same originating summons transferred from Nakuru High Court to the ELC Nyahururu.

Reasoning

Although several prior suits involved the same parties and properties, only the Defendants' claims were adjudicated on merit. The High Court's judgment of 10th May 2011 permitted the Plaintiffs to pursue their adverse possession claim by separate suit, subject to prosecution within 90 days. Failure followed from the court file going missing, which the Defendants did not dispute, and no ruling dismissing the reconstruction application was exhibited. The case number changed only upon transfer.

p. 3
02

Whether the suit is an abuse of the court process

Holding

It is not; the abuse contention rested solely on res judicata, which failed, and no ulterior purpose was demonstrated.

Reasoning

The court defined abuse of process as misuse of the court's machinery or use for ulterior purposes. Since the res judicata ground failed, there was no material supporting abuse. The Plaintiffs' adverse possession claim had never been heard, so pursuing it could not be an abuse.

p. 3

Legal principles established

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  • A suit dismissed for want of prosecution under a peremptory direction, without determination on merit, does not render a subsequent suit on the same claim res judicata.
  • Abuse of court process entails misusing the machinery of the court or using it for ulterior purposes.

Court orders

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  1. 1.The Defendants' notice of motion dated 2nd July 2021 is dismissed.
  2. 2.Costs of the application shall be in the cause.
  3. 3.The parties shall take a hearing date immediately upon delivery of the ruling.

Authorities

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Legislation

  • Limitation of Actions Act (Cap. 22)Sections 13(1), 37 & 38
  • Civil Procedure Act (Cap. 21)Section 7
  • former Civil Procedure RulesOrder XXXVI Rule 3D
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(d) and 3
Jurisdiction invoked
Sections 13(1), 37 & 38 of the Limitation of Actions Act (Cap. 22) and Order XXXVI Rule 3D of the former Civil Procedure Rules; application under Section 7 of the Civil Procedure Act and Order 2 Rule 15(1)(d) and 3 of the Civil Procedure Rules, 2010

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, "Julius Daudi Gatambia & another v Mary Wanjiru Macharia (sued as the legal Representative of the estate of the late James Macharia Gichure) & 6 others [2022] KEELC 624 (KLR)", Case Analysis (2022). Nyahururu ELC No. 33 of 2017 (originating summons dated 26th October 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/624/eng@2022-03-17

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