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ELCDismissedNot stated in the judgment text provided· [2022] KEELC 2094 (KLR)

Agnes Nthenya Masila v Mutiso Kimau & another [2022] KEELC 2094 (KLR)

Environment and Land Court
20 January 2022
COCHRISTINE OCHIENG
1,148 words in judgment
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The bottom line

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The Environment and Land Court in Machakos ruled the landowners' claim could proceed because it was not a repeat of an earlier case, so the defendants' attempt to end it failed.

What this practically means

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Executive summary

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The court, per Hon. Christine Ochieng J, delivered a virtual ruling at Machakos on 20 January 2022 on the Defendants' Preliminary Objection dated 20 September 2019. The Defendants contended that the suit was res judicata, having been determined in Machakos HCCC No. 206 of 1998 by a consent judgment dated 1 November 2007, under which they claimed entitlement as beneficiaries of the estate of Mulinge Muli Makau in LR No. 8914. The Plaintiff, the registered proprietor of land title I.R 160412 Land Reference 8914/79 since 31 December 2014, countered that the consent order was incomplete, did not constitute a court order or judgment concerning the present parties, and that her title did not exist when the consent was executed. Applying section 7 of the Civil Procedure Act and the authorities cited on res judicata, the court held that only Peter Muli of the Defendants was a party to the earlier suit; the prior suit concerned LR No. 8914 owned by Ngelani Ranch, a different property from the plaintiff's parcel; the validity of the plaintiff's title was not determined in the prior suit; and res judicata was not first raised in a Defence. The court therefore found the Preliminary Objection unmerited, disallowed it, and ordered costs in the cause. The underlying suit remains for substantive hearing and determination.

Key legal issues

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Whether the suit is res judicata by dint of the consent judgment in Machakos HCCC No. 206 of 1998

Holding

The suit is not res judicata; the parties, suit property and issues differ from the prior suit.

Reasoning

The court compared the parties: only Peter Muli featured in both suits. The prior suit concerned LR No. 8914 owned by Ngelani Ranch, whereas this suit concerns I.R 160412 Land Reference 8914/79, titled to the plaintiff after the consent order. The validity of the plaintiff's title was never determined in the prior suit, and res judicata was not pleaded in a Defence.

p. 2

Legal principles established

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  • Res judicata requires a previous suit in which the matter was in issue, same parties or parties litigating under the same title, and determination by a competent court
  • A defence of res judicata should first be raised in the Defence

Court orders

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  1. 1.The Defendants' Preliminary Objection dated 20th September, 2019 is unmerited and is disallowed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (5)

  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Nancy Mwangi T/A Worthlin Marketers V Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 Others
    (2014) eKLR
  • Omondi Vs National Bank of Kenya Limited and others
    (2001) EA 177
  • Njangu Vs Wambugu and another
    Nairobi HCCC No. 2340 of 1991 (unreported)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly invoked in the judgment text)

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, "Agnes Nthenya Masila v Mutiso Kimau & another [2022] KEELC 2094 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2094/eng@2022-01-20

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