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ELCStruck OutNot stated in the judgment as provided· [2022] KEELC 2829 (KLR)

Gathuri & another v Mohamed & another (Environment & Land Case 239 of 2018) [2022] KEELC 2829 (KLR)

Environment and Land Court
29 June 2022
NMN. A. Matheka
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court threw out a land dispute because it had already been fought and decided in earlier cases, and the losers had to pay costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (N.A. Matheka J) on a notice of motion dated November 23, 2018 by the Defendants, brought under Sections 6 and 7 of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules, seeking a stay of the suit as res judicata and sub judice, or in the alternative, striking out the Plaint dated October 15, 2018 as an abuse of process. The Defendants argued that the issues were substantially the same as those in Mwanaisha Kiriale Mohamed & Another v Alfred Wafula Okuku & 2 others (ELC No. 129 of 2010) and Peter Thuo v Mbarak Hamisi Mbarak (RMCC No. 3049 of 2009, under appeal as Civil Appeal No. 101 of 2010), and that status quo orders had been issued in the ELC matter. The Plaintiffs contended that the matters were fundamentally different, the Defendant having vacated, and that the only live claim was for general damages. The court found that title to the subject land was already in issue before the Magistrate's Court, High Court and Court of Appeal between the same or similar parties, and that the newly introduced claim for general damages was an attempt to relitigate a matter that should have been raised earlier, contrary to the doctrine in Henderson v Henderson. Holding that it lacked jurisdiction under Sections 6 and 7 of the Civil Procedure Act, the court struck out the suit with costs to the Defendants.

Key legal issues

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01

Whether the suit is res judicata and/or sub judice

Holding

The suit is res judicata and/or sub judice and the court lacks jurisdiction to entertain it; it is struck out with costs

Reasoning

The title and ownership of the subject properties were already in issue before the Magistrate's Court, High Court and Court of Appeal in proceedings between the same or similar parties, including ELC No. 129 of 2010 and RMCC No. 3049 of 2009 with its appeal. The plaintiffs' new claim for general damages was a fresh cause of action that should have been raised in the earlier suits; under Sections 6 and 7 of the Civil Procedure Act the court cannot try the matter.

p. 3

Legal principles established

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  • Courts must guard against litigants evading res judicata by introducing new causes of action to seek the same remedy
  • A claim that could have been raised in earlier litigation with reasonable diligence cannot be reopened in a fresh suit

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (7)

  • E.T. v Attorney General & another
    (2012) eKLR
  • Gurbachau vs Yowani Ekori
    (1958) EA 450
  • Henderson vs Henderson
    (1) 67 ER 313
  • Mwanaisha Kiriale Mohamed & Another vs Alfred Wafula Okuku and 2 others
    ELC No. 129 of 2010 Mombasa
  • Peter Thuo vs Mbarak Hamisi Mbarak
    RMCC No. 3049 of 2009 Mombasa
  • High Court Civil Appeal No. 101 of 2010 Mombasa
  • Peter Thuo & Another vs Diamond Trust Bank & 2 others
    High Court Commercial Case No. 113 of 2016
Jurisdiction invoked
Sections 6 and 7 of the Civil Procedure Act (Cap 21), Order 2 Rule 15(1)(d) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Gathuri & another v Mohamed & another (Environment & Land Case 239 of 2018) [2022] KEELC 2829 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2829/eng@2022-06-29

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