Margaret Wanjiku Henry v Road Touch Services [2022] KEELC 2160 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land claim because it repeated an earlier case and tried to dodge a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata the matrimonial cause
Yes. The issues, parties and subject matter are the same; the claim in trust could have been raised in the matrimonial cause under Section 7, Explanation 4, and the court had jurisdiction.
The plaintiff's claim in both suits is that she is entitled to half of the suit property based on her contribution to its purchase. Prayers couched as trust claims achieve the same result as the declaration sought in the matrimonial cause. The plaintiff and defendant were parties to the former suit; adding or omitting parties does not defeat res judicata. The High Court handling the matrimonial cause was competent, and a trust issue could have been raised there. Order 12 Rule 6(2) and Section 8 of the Civil Procedure Act bar a fresh suit on the same cause of action after dismissal under Order 12 Rule 3, so the lack of a hearing on merits is no answer.
Whether the suit is an abuse of the process of court
Yes. The suit was filed to avoid compliance with the order requiring deposit of Kshs. 42,473,395/= as a condition for reinstatement of the matrimonial cause.
Under Order 2 Rule 15(1)(b) and (d) the court may strike out pleadings that are frivolous, vexatious or an abuse of process. The plaintiff failed to meet the conditional reinstatement order and then instituted this suit claiming the same relief, thereby seeking to escape the deposit condition and render nugatory orders of another court. The court held this was not a question of contempt but of abuse of process, which cannot be permitted. The principle that courts should sustain rather than terminate suits does not apply where a suit is filed in abuse of process or in violation of the law.
Whether the suit is time barred
The court declined to determine limitation, as it would require evidence and was unnecessary given the findings on res judicata and abuse of process.
The judge stated that if the suit had been properly before the court, limitation would have required evidence and could not be resolved on the material before him. Since the suit was already liable to dismissal as res judicata and an abuse of process, the limitation ground was not decided and no finding was made on Section 7 of the Limitation of Actions Act.
Whether the application was itself res judicata after dismissal of the preliminary objection
No. Dismissal of the preliminary objection on form was not a determination of the issues, and liberty was given to raise them by formal application.
The court had dismissed the preliminary objection because the issues were not suitable for determination as a preliminary objection, expressly reserving them for a substantive application. The defendant duly filed the application now before the court. The dismissal was therefore not a decision on the merits of res judicata, limitation or abuse of process, and the application was properly before the court. Similarly, Mr. Kiragu's affidavit was properly on record as he swore it with the authority of the defendant company.
Legal principles established
#- For res judicata, parties may couch prayers differently, but the test is whether the substance of the claim was determined or could have been raised in the former suit.
- Under Order 12 Rule 6(2) of the Civil Procedure Rules and Section 8 of the Civil Procedure Act, no fresh suit may be instituted on the same cause of action after a suit is dismissed under Order 12 Rule 3, and the fact the former suit was not heard on merits is no shelter.
- A party cannot evade res judicata by adding other parties or causes of action in a subsequent suit.
- A suit filed to circumvent a court order, such as a conditional reinstatement order requiring deposit of rent, is an abuse of process and liable to be struck out.
Court orders
#- 1.The defendant's application dated 13 May 2021 succeeded
- 2.The plaintiff's suit was dismissed
- 3.Costs of the suit awarded to the defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; application under Order 2 Rule 15(1)(a) and (d) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wanjiku Henry v Road Touch Services [2022] KEELC 2160 (KLR)", Case Analysis (2022). Not stated in the judgment (Mombasa Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2160/eng@2022-01-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.