Mike Kipkorir Kipyego v Raska Investments Limited & another (Environment & Land Case 123 of 2020) [2022] KEELC 3713 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a landowner's suit because an earlier High Court judgment on the same property's ownership still stood unchallenged.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata under Section 7 of the Civil Procedure Act
Res judicata does not apply because neither the Plaintiff nor the 2nd Defendant was a party to Nairobi HCC No 502 of 2011, nor alleged to be represented therein
The court set out the ingredients of res judicata: a former suit between the same parties or parties under whom they claim, decided by a competent court on the merits. Though the prior HCC No 502 of 2011 judgment dealt with ownership of the same property, the Plaintiff was not a party and no representation was alleged. The preliminary objection on res judicata therefore failed.
Whether the Plaintiff established a prima facie case for temporary injunction
No prima facie case was established; the certificate of lease of 2019 could not stand against an unchallenged judgment in rem on the same property
The Plaintiff exhibited a certificate of lease issued in 2019 but no documents showing the process leading to its issuance. The prior High Court judgment decreed valid title to Francis Maina Kibunyi and Kamunyu Kahenya, who were not parties to this suit. That decision in rem subsisted unchallenged, so the Plaintiff could not stake a claim over the same property. Applying Mrao Ltd, the claim fell short of a prima facie case.
Whether the suit is an abuse of the due process of the court
Yes; continuing the suit despite knowledge of the High Court judgment in HCC No 502 of 2011 abuses court process, and the suit was struck out under the court's inherent jurisdiction
The prior judgment on ownership in rem remained valid and unimpeached. Rendering a parallel decree on the same title would be contradictory and futile. Any bona fide claimant should seek review of or be joined in that judgment. Relying on Muchanga Investments and the inherent jurisdiction doctrine (Madara Evans Okanga Dondo), the court exercised its power to prevent abuse of process and struck out the suit.
Legal principles established
#- Res judicata requires a previous suit between the same parties or their representatives; a party who was not a party to the prior suit cannot be barred by it
- A judgment in rem on ownership of property holds sway against the whole world until set aside, and a parallel suit claiming the same property is an abuse of process
- The court has inherent jurisdiction to strike out suits that abuse its due process
Court orders
#- 1.The Application dated June 24, 2020 be and is hereby Dismissed
- 2.The Plaintiff's suit be and is hereby struck out
- 3.Costs of the Application and the Main suit be and are hereby awarded to the 2nd Defendant
- Jurisdiction invoked
- Inherent jurisdiction of the court; Civil Procedure Act, Chapter 21, Laws of Kenya (Section 7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mike Kipkorir Kipyego v Raska Investments Limited & another (Environment & Land Case 123 of 2020) [2022] KEELC 3713 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated June 2, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3713/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.