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ELCDismissedELC No. 12 of 2018· [2022] KEELC 1357 (KLR)

Naomi Wayua Mutuku v Mutua S Waema & 5 others; Komarock & Farming Co-operative Society (Interested Party) [2022] KEELC 1357 (KLR)

Environment and Land Court
22 February 2022
COChristine Ochieng
1,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land suit, ruling the defendant failed to prove his earlier case actually decided the same dispute.

What this practically means

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Executive summary

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The 1st Defendant, by Notice of Motion dated 16th March 2020 brought under Section 3A of the Civil Procedure Act and Articles 50 and 59 of the Constitution, sought striking out of the plaint dated 19th January 2018 and amended on 29th April 2021 as res judicata and an abuse of process. He deponed that he had been registered owner of the suit property since 1999 and that ownership had been determined in Nairobi HCCC No. 1098 of 1993, implemented through Gazette Notice No. 1713 of 31st March 1995. The Plaintiff opposed, asserting she challenged a fraudulent sale and transfer before village elders, the area chief, the district officer and the Land Dispute Tribunal, that she was not properly served in the 1993 suit, that the parties differed, and that the Applicant had not furnished the pleadings or judgment in that suit. The sole issue was whether the plaint should be struck out as res judicata. The court applied Section 7 of the Civil Procedure Act and the conjunctive elements set out in the IEBC v Maina Kiai decision. It noted the Applicant admitted not all parties were before the former court, and that no pleadings, proceedings or judgment from HCCC No. 1098 of 1993 were availed. Holding that the Applicant bore the burden of proof under Section 107 of the Evidence Act and had failed to discharge it, the court found the suit was not res judicata, dismissed the application, directed the matter to full hearing on the merits, and ordered costs in the cause.

Key legal issues

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01

Whether the plaint is res judicata by virtue of the determination in Nairobi HCCC No. 1098 of 1993

Holding

The application failed because the Applicant did not prove that the parties, issues and title were the same as in the former suit

Reasoning

Section 7 of the Civil Procedure Act bars trial of matters directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally decided by a competent court. The Applicant admitted not all parties before the court were parties to the former suit and did not avail the pleadings or judgment from it. The court therefore could not confirm what issues were determined, and the Applicant failed to discharge the burden of proof under Section 107 of the Evidence Act.

p. 2

Legal principles established

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  • The party pleading res judicata bears the burden of proving the elements of Section 7 of the Civil Procedure Act, including by producing the pleadings and judgment in the former suit
  • The elements of res judicata must be satisfied conjunctively, not disjunctively

Court orders

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  1. 1.The Notice of Motion application dated 16th March, 2020 seeking to strike out the plaint is disallowed/unmerited
  2. 2.Costs will be in the cause
  3. 3.The matter to proceed for full hearing on its merits

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7
  • Constitution of KenyaArticles 50 and 59
  • Evidence ActSection 107

Cases cited (13)

  • Omondi Vs National Bank of Kenya Ltd & others
    (2001) EA 177
  • Henry Wanyama Khaemba Vs Chartered Bank Ltd
    Civil Case No. 560 of 2006
  • Trade Bank Ltd v L.Z Engineering Construction Ltd
    [2000] IRA 266
  • Zurich insurance Co. PLC v Colin Richard
    (2011) EWCA Civil 641
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Ngomeni Swimmers Ltd V Lalana Chera Suleiman
    (2014) eKLR
  • Myers V Elman
    (1939) 4 All ER 509
  • Tom Chebungwen Ndiwa V County Government of Bungoma & 3 Others
    (2018) eKLR
  • In re Estate of David Wanganga Gichuhi (Deceased)
    (2020) eKLR
  • James Maina Kinya V Gerald Kwendaka
    (2018) eKLR
  • Joseph Kaguthi & 11 Others V Permanent Secretary, Ministry of Interior & Coordination of Government & Another
    (2021) eKLR
  • Cosmas Mrombo Moka V Cooperative Bank of Kenya Limited & Another
    (2018) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
Jurisdiction invoked
Articles 50 and 59 of the Constitution and Section 3A of the Civil Procedure Act (as invoked in the Notice of Motion)

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, "Naomi Wayua Mutuku v Mutua S Waema & 5 others; Komarock & Farming Co-operative Society (Interested Party) [2022] KEELC 1357 (KLR)", Case Analysis (2022). ELC No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1357/eng@2022-02-22

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