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ELCStruck OutNot stated in the judgment (application dated 5th July 2021 in pending suit)· [2022] KEELC 2628 (KLR)

Nyangau v Ndatani Enterprises Limited & 2 others (Environment & Land Case 51 of 2019) [2022] KEELC 2628 (KLR)

Environment and Land Court
14 July 2022
3,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos dismissed a landowner's fresh ownership claim, ruling it was barred because an earlier court decision had already settled the dispute.

What this practically means

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Executive summary

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The Environment and Land Court at Machakos (A. Nyukuri, J) determined a Notice of Motion dated 5th July 2021 by the 1st Defendant seeking a declaration that the Plaintiff's suit is res judicata following the judgment delivered on 31st October 2017 in Machakos ELC No. 224 of 2009 (Ndatani Enterprises Co. Limited & Another v Railways Housing Co-operative Limited) and its dismissal with costs. The Plaintiff, a purchaser of parcel L.R No. 7340/90/5 from the 2nd Defendant, claimed ownership of the suit property, alleging the transfer to the 3rd Defendant was fraudulent and contrary to an interlocutory order in the former suit. He argued the consent decree in the former suit was made between the 1st and 2nd Defendants without regard to purchasers. The court framed a sole issue: whether the suit is res judicata under Section 7 of the Civil Procedure Act. It found the proprietary rights of purchasers of L.R No. 7340/90, including the Plaintiff, were directly and substantially determined in the former suit, which allocated the Plaintiff an alternative plot and the suit property to the 3rd Defendant. The Plaintiff was in privity with the 2nd Defendant, who litigated the former suit, and having stood by while his battle was fought, he was bound by the consent decree; his remedy lay in review or appeal, not a fresh suit. The court that determined the former suit was competent and its decree of 7th November 2017 was final. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the issues in this suit were directly and substantially in issue in the former suit

Holding

Yes - the former suit determined the proprietary rights of purchasers of L.R No. 7340/90, including the Plaintiff, and allocated him an alternative plot.

Reasoning

The Plaintiff's claim challenges the transfer of the suit property to the 3rd Defendant. The decree in Machakos ELC No. 224 of 2009 declared which purchasers were entitled to plots from L.R No. 7340/90 and allocated the Plaintiff L.R. No. KAJ/Kaputiei North/89695 while allocating the suit property to the 3rd Defendant. The same proprietary issue was therefore heard and finally determined.

p. 5
02

Whether the parties are the same or in privity

Holding

The Plaintiff was not a party to the former suit, but there is privity because he purchased the suit property from the 2nd Defendant, who was the plaintiff in the former suit.

Reasoning

Section 7 extends res judicata to parties under whom a litigant claims. The Plaintiff bought the suit property from the 2nd Defendant, who prosecuted the former suit. Additionally, the Plaintiff was aware of the former suit, having relied on an interlocutory order made in it, and stood by while his privy fought the case; he is therefore bound by the decree, including its consent judgment form.

p. 5
03

Whether the court that determined the former suit was competent and its decision final

Holding

Yes - the Environment and Land Court, through a judge of that court, adopted the consent as judgment and issued a decree on 7th November 2017, a final determination.

Reasoning

The former suit was determined by a judge of the Environment and Land Court, which is competent to determine ownership and alleged fraudulent transfer of land. The decree dated 7th November 2017 was a final determination of the issues, and the Plaintiff's proper remedies were review or appeal, not a fresh suit.

Legal principles established

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  • A party who stands by while his privy litigates over property in which he claims an interest is bound by the result and cannot re-open the matter by a fresh suit.
  • A party aggrieved by a decree must seek review or appeal; a fresh suit at the same level is a horizontal action that the doctrine of res judicata forbids.
  • The elements of res judicata are conjunctive and must all be present before a suit is deemed res judicata.

Court orders

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  1. 1.Declared that the suit is res judicata following the judgment in Machakos ELC No. 224 of 2009
  2. 2.Suit dismissed with costs to the Defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Section 7 of the Civil Procedure Act (res judicata)

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, "Nyangau v Ndatani Enterprises Limited & 2 others (Environment & Land Case 51 of 2019) [2022] KEELC 2628 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated 5th July 2021 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2628/eng@2022-07-14

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