Kanyari v Mwangi & another (Sued as The Administrator of The Estate of Mwangi Kanyari) (Environment & Land Case E028 of 2021) [2022] KEELC 2817 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land trust claim filed decades after the same dispute was already decided, confirming you cannot relitigate a concluded case.
What this practically means
#Executive summary
#Key legal issues
#Whether the issue of customary trust had been heard and determined in prior litigation
The issue of customary trust was raised by counter-claim in Muranga PM Civil Case No. 5 of 1986 and determined against the Plaintiff, and the High Court on appeal in Nairobi Civil Appeal No. 250 of 1991 agreed with the trial magistrate.
The Court perused the pleadings and judgments in the prior suits. The counter-claim for customary trust over the suit property was dismissed in the 1986 suit, and the High Court on appeal independently evaluated the evidence and reached the same conclusion. A counter-claim is an independent suit; if dissatisfied, the Plaintiff's remedy was appeal, not fresh litigation.
Whether the Plaintiff's suit is res judicata
The suit is res judicata Muranga PM Civil Case No. 5 of 1986 and Nairobi Civil Appeal No. 250 of 1991 and must be struck out. The adverse possession suits did not raise res judicata as to trust, but the 1986 and 1991 decisions do.
Applying section 7 of the Civil Procedure Act and the ingredients in John Florence Maritime and IEBC v Maina Kiai, the Court found the issue of customary trust was directly and substantially in issue in the former suits, between the same parties, litigating under the same title, before competent courts, and finally determined. The parties and subject matter (L.R. No. Loc. 19/Rwathia-Kiriti/283) are the same, save for the 2nd Applicant who claims under the 1st Applicant via a confirmed grant.
Who should bear the costs of the application
Costs follow the event; the successful Applicants are awarded the costs of the suit.
Under section 27 of the Civil Procedure Act the Court has discretion over costs, and costs follow the events. The Defendants/Applicants were wholly successful in having the suit struck out and therefore were awarded the costs of the suit.
Legal principles established
#- A claim of customary trust that was raised and conclusively determined in a former suit between the same parties over the same subject matter bars a subsequent suit on that issue as res judicata
- A counter-claim is an independent suit from a plaint, and a party aggrieved by its determination had an avenue of appeal rather than fresh litigation
- Res judicata brings litigation to a halt and prevents abuse of court process
Court orders
#- 1.The Notice of Motion Application dated 25th November 2021 is allowed entirely in terms of prayers (a), (b) and (c)
- 2.The Plaintiff's suit is struck out for being res judicata
- 3.The Defendants/Applicants, being the successful parties, shall have the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction; Section 7 and Section 27 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanyari v Mwangi & another (Sued as The Administrator of The Estate of Mwangi Kanyari) (Environment & Land Case E028 of 2021) [2022] KEELC 2817 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2817/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.