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ELCStruck OutOriginating Summons dated September 2, 2019· [2022] KEELC 3343 (KLR)

Mahinda & 2 others v Mahinda & 2 others (Environment & Land Case 26 of 2019) [2022] KEELC 3343 (KLR)

Environment and Land Court
28 July 2022
JOJ O Olola
1,683 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a land claim because the same family dispute had already been decided in a succession case, punishing duplicate lawsuits with costs.

What this practically means

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Executive summary

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The plaintiffs, by Originating Summons dated September 2, 2019, sought declarations that they had acquired title by adverse possession to LR no Ruguru/Chieni/277 in Mathira Sub-County, Nyeri, and that the land be registered in their names in place of the defendants. The defendants opposed, asserting ownership and lawful occupation, and raised a preliminary objection under sections 6, 7 and 89 of the Civil Procedure Act, contending the suit was res judicata, duplicating Nairobi Succession Cause no 308 of 2014, and overtaken by events since the plaintiffs had been evicted on December 11, 2019. The court, per J O Olola J, set out the five conjunctive elements of res judicata under section 7 and found that the objection proceedings in the succession cause, determined by Asenath Ongeri J on June 7, 2019, concerned the same subject matter, parties litigating under the same title, and resulted in a finding that the 1st plaintiff was an intermeddler directed to vacate within 60 days. The plaintiffs had also appealed that ruling to the Court of Appeal and had a pending eviction suit, Nyeri HCCC no 65 of 2016. The court held the present claim amounted to opening parallel proceedings and an abuse of court process. The preliminary objection was allowed, the suit struck out, and the plaintiffs ordered to bear the costs of the suit.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata as the same subject matter between the same parties litigating under the same title was determined in the succession cause

Reasoning

The court found the objection proceedings in Succession Cause no 308 of 2014 concerned the same subject matter and parties. The judge in that cause pronounced on ownership of the suit land and directed the plaintiffs to vacate within 60 days. Adding family members as parties did not avoid the doctrine, as they litigate under the same title.

p. 3
02

Abuse of court process

Holding

Filing an adverse possession claim while a parallel suit was pending and an appeal was lodged against the prior ruling constitutes abuse of process

Reasoning

The plaintiffs had a pending appeal to the Court of Appeal against the ruling on ownership, and a third suit (Nyeri HCCC no 65 of 2016) seeking their eviction was still pending. Initiating the present claim amounted to opening parallel processes hoping one court would decide in their favour.

p. 4

Legal principles established

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  • The bar of res judicata requires satisfaction of five essential elements in conjunctive terms

Court orders

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  1. 1.The defendants' preliminary objection is allowed and the suit is struck out for being res judicata and an abuse of the court process
  2. 2.The plaintiffs shall bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 89
  • Law of Succession Actsection 45
Jurisdiction invoked
Adverse possession claim under the Limitation of Actions Act; jurisdiction challenged under sections 6, 7 and 89 of the Civil Procedure Act

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, "Mahinda & 2 others v Mahinda & 2 others (Environment & Land Case 26 of 2019) [2022] KEELC 3343 (KLR)", Case Analysis (2022). Originating Summons dated September 2, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3343/eng@2022-07-28

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