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ELCStruck OutNot stated in judgment (Notice of Motion dated June 2, 2020)· [2022] KEELC 3713 (KLR)

Mike Kipkorir Kipyego v Raska Investments Limited & another (Environment & Land Case 123 of 2020) [2022] KEELC 3713 (KLR)

Environment and Land Court
30 June 2022
4,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Plaintiff, Mike Kipkorir Kipyego, moved the court by Notice of Motion dated June 2, 2020 seeking interim injunctions restraining the Defendants from encroaching upon, developing, selling or leasing L R No 330/506 on Riara Road, Nairobi, pending hearing of the application and the main suit, plus police oversight of compliance and costs. He claimed to be the registered proprietor under a certificate of lease issued in 2019 and alleged trespass from June 20, 2020. The 2nd Defendant opposed, asserting a tenancy with the 1st Defendant, over 20 years' occupation running a garage and motor vehicle repairs shop, and filed a preliminary objection pleading res judicata and lack of jurisdiction, citing a High Court judgment in Nairobi HCC No 502 of 2011 which decreed valid title in the suit property to Francis Maina Kibunyi and Kamunyu Kahenya. The Plaintiff filed no submissions. The court framed three issues: res judicata, prima facie case, and abuse of process. It held res judicata did not apply because the Plaintiff was not a party to the prior suit and no representation was alleged. However, the prior judgment in rem on ownership subsisted unchallenged, so the Plaintiff disclosed no prima facie case. Continuing the suit despite knowledge of that judgment amounted to abuse of the court's due process. Exercising its inherent jurisdiction, the court dismissed the application dated June 24, 2020, struck out the entire suit, and awarded costs of both the application and the main suit to the 2nd Defendant.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

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

Reasoning

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.

p. 7
02

Whether the Plaintiff established a prima facie case for temporary injunction

Holding

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

Reasoning

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.

p. 8
03

Whether the suit is an abuse of the due process of the court

Holding

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

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The Application dated June 24, 2020 be and is hereby Dismissed
  2. 2.The Plaintiff's suit be and is hereby struck out
  3. 3.Costs of the Application and the Main suit be and are hereby awarded to the 2nd Defendant

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 7 (res judicata)

Cases cited (11)

  • Independent Electoral and Boundaries Commission versus Maina Kiae & 5 Others
    (2017) eKLR
  • Mburu Kinyua versus Gachini Tuti
    (1978) eKLR
  • Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
    [2014] eKLR
  • John Florence Maritime Ltd v The Cabinet Secretary, Transport, Infrastructure & Public Works & Another
    (2015) eKLR
  • Henderson v Henderson
    [1843] 67 ER 313
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
  • John Nzomo Wambua versus Joseph Taiti Wambua
    (2021) eKLR
  • Franco Nderitu Kanyari & 6 Others versus County Government of Nyandarua
    (2018) eKLR
  • Paul Gitonga Wanjau versus Gathuthis Tea Factory Company Ltd & 2 Others
    (2016) eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (africa) Ltd & 2 others
    [2009] eKLR
  • Madara Evans Okanga Dondo v Housing Finance Company of Kenya
    [2005] eKLR
Jurisdiction invoked
Inherent jurisdiction of the court; Civil Procedure Act, Chapter 21, Laws of Kenya (Section 7)

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, "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.