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ELCDismissedNot stated in the judgment text· [2022] KEELC 1649 (KLR)

Susan Ndunge Maingi v Dee Properties Limited & 4 others [2022] KEELC 1649 (KLR)

Environment and Land Court
7 February 2022
5,158 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 ruled that an earlier matrimonial property case does not block a new claim against a land buyer, because that court lacked jurisdiction over land interests.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos determined a Notice of Motion dated 26th August 2020 by Dee Properties Limited, the 1st Defendant, seeking the striking out of the Plaintiff's suit as res judicata and an abuse of process. The Applicant argued that the Plaintiff's claim over Mavoko Town Block 3/1160 had been conclusively determined in Machakos High Court Matrimonial Cause No. 10 of 2017 (OS), in which the court declared matrimonial property and ordered the 2nd Defendant to hold Kshs. 14,100,000 in trust for the Plaintiff, so that a fresh suit against the purchaser would yield double enrichment. The Plaintiff countered that the parties and causes of action differed, the matrimonial court lacked jurisdiction over the third-party purchaser's title, and her claim rested on an overriding, equitable and unregistered interest under section 28 of the Land Registration Act. The court framed the sole issue as whether the suit was res judicata under section 7 of the Civil Procedure Act. Applying the conjunctive elements of the doctrine, it held that the High Court in the matrimonial cause had no jurisdiction to determine claims of overriding interests in registered land, which fall exclusively within the ELC's jurisdiction under Article 162(2)(b) and section 13 of the ELC Act; the matrimonial court had expressly declined to nullify dispositions to absent third parties. It further held the Applicant was not a party to, nor claimed under anyone in, the former suit. The application was accordingly dismissed with costs.

Key legal issues

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01

Whether the suit is res judicata having regard to Machakos High Court Matrimonial Cause No. 10 of 2017 (OS)

Holding

The suit is not res judicata. The former suit concerned matrimonial property contribution and sharing under the Matrimonial Property Act; the present suit concerns a claim to an overriding, equitable and unregistered 50% interest under section 28 of the Land Registration Act, which only the ELC can determine. Further, the Applicant was not a party to the former suit.

Reasoning

The court applied section 7 of the Civil Procedure Act and its five conjunctive elements. The High Court in the matrimonial cause expressly declined to nullify dispositions to third parties, who had not been heard. The question of an overriding interest in registered land belongs to the ELC under Article 162(2)(b) and section 13 of the ELC Act; the High Court had no jurisdiction over it, so the issue could not have been finally determined in the former suit.

p. 6
02

Whether the Plaintiff's claim would result in double enrichment of the Plaintiff

Holding

The argument of double enrichment is unfounded because the former judgment did not consider the legality of the sale to the Applicant or the question of overriding interest.

Reasoning

The court found the former judgment rested on the assumption that the sale was lawful and never pronounced on the legality of the disposition to the 1st Defendant or on the Plaintiff's alleged overriding interest. Consequently the Plaintiff's claim in the present suit is not a collateral attack on the matrimonial decree but a distinct question the former court never determined.

p. 6

Legal principles established

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  • A plea of res judicata can only be raised where the court that tried the former suit had jurisdiction to try the fresh suit.
  • The High Court exercising matrimonial property jurisdiction lacks jurisdiction to determine claims of overriding, equitable and unregistered interests in registered land under section 28 of the Land Registration Act; such disputes fall within the exclusive jurisdiction of the Environment and Land Court.
  • For res judicata to apply the parties in the former and current suits must be the same or claim under them; a party not joined in the former suit cannot plead res judicata.

Court orders

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  1. 1.The 1st Defendant/Applicant's Notice of Motion dated 26th August 2020 is dismissed
  2. 2.The Applicant to pay the costs of the application

Authorities

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Legislation

  • Environmental and Land Court Act, 2011section 19(1) & (2)
  • Environmental and Land Court Act, 2011section 13(1) and (2)
  • Civil Procedure Act, Cap 21section 3A
  • Civil Procedure Act, Cap 21section 7
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(b) & (d)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 45(3)
  • Constitution of Kenya, 2010Article 40
  • Land Registration Act, No. 3 of 2012section 28
  • Land Registration Act, No. 3 of 2012section 2
  • Matrimonial Property Actsection 7

Cases cited (14)

  • Saif Ali v Sydney Mitchell & Co
  • William Koross (Legal representative of Elijah C.A Koross) v Hezekiah Kiptoo Komen
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others
    (2021) eKLR
  • Pop-In (Kenya) Limited & 3 others v Habib Bank
    [1990] eKLR
  • Graham Rioba Sagwe & 2 Others v Fina Bank Limited & 5 Others
    [2017] eKLR
  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others
    (1996) eKLR
  • Robert M. Muga v Muchangi Kiunga & 2 Others
    [2007] eKLR
  • Samuel Kiiru Gitau v John Kamau Gitau
    Nairobi HCC No. 1249 of 1998
  • AKM v NNN
    [2019] eKLR
  • Diocese of Eldoret Trustees (Registered) v Attorney General (on behalf of the Principal Secretary Treasury) & Another
    [2020] eKLR
  • Pangaea Holdings LLC & another v Hacienda Development Limited & 2 Others
    [2020] eKLR
  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    [2017] eKLR
  • Invesco Assurance Company Limited & 2 Others v Auctioneers Licensing Board & Another; Kinyanjui Njuguna & Company & Another (Interested Parties)
    [2020] eKLR
  • Mugo Muiru Investments Limited vs. E.W.B & 2 Others
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 read with section 13(1) and (2) of the Environment and Land Court Act, 2011; application brought under section 19(1) & (2) of the Environment and Land Court Act and sections 3A and 7 of the Civil Procedure Act, Order 2 Rule 15(1)(b) & (d) and Order 51 Rule 1 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, "Susan Ndunge Maingi v Dee Properties Limited & 4 others [2022] KEELC 1649 (KLR)", Case Analysis (2022). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1649/eng@2022-02-07

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