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ELCDismissedNot stated in the excerpt (Plaint dated 27th June 2018, ELC Nairobi)· [2022] KEELC 3933 (KLR)

Gidjoy Investments Limited v Zero Point Construction Company Ltd & 70 others (Environment & Land Case 301 of 2018) [2022] KEELC 3933 (KLR)

Environment and Land Court of Kenya
3 August 2022
9,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a land suit, confirming that struck-out cases aren't res judicata and factual disputes belong at trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Oguttu Mboya J, 3rd August 2022) determined two Notice of Motion applications and two Preliminary Objections filed by the 68th and 69th Defendants seeking to strike out the Plaintiff's plaint dated 27th June 2018 for being res judicata, sub-judice, time-barred and an abuse of court process. The applicants relied on the prior suits Nairobi HCC No. 55 of 2002 (Continental Developers Ltd v Donholm Jacaranda Housing Scheme, struck out on 24th November 2009) and Nairobi HCC No. 336 of 2003, and on the National Land Commission's determination. The court framed four issues. On res judicata, it applied Section 7 of the Civil Procedure Act and the Supreme Court's test in KCB v Muiri Coffee Estate, holding that the plaintiff was not a party to the previous suits and that HCC No. 55 of 2002 was struck out, not decided on merits, so the doctrine was inapplicable. On sub-judice, it found the pleadings of HCC No. 336 of 2003 were withheld, attracting an adverse inference, and that Section 6 provides for stay, not striking out. On limitation, the cause of action accrued in April 2018 when the impugned titles were procured, so the June 2018 suit was timeous. On abuse of process, the court held that serious factual issues on the validity of titles required plenary hearing, striking out being reserved for plain and obvious cases. All applications and preliminary objections were dismissed with costs to the Plaintiff, 63rd, 64th, 65th and 70th Defendants.

Key legal issues

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01

Whether the suit is barred by res judicata (Section 7, Civil Procedure Act) by virtue of Nairobi HCC No. 55 of 2002

Holding

Res judicata does not apply; the plaintiff was not a party to the previous suit and that suit was struck out, not determined on merits.

Reasoning

The court applied the five-part test from Bernard Mugo Ndegwa v James Nderitu Githae (adopted by the Supreme Court in KCB v Muiri Coffee Estate): identity of issues, parties, title, jurisdiction and finality. The plaintiff herein was admittedly not a party to HCC No. 55 of 2002 nor to HCC No. 336 of 2003, and the 68th Defendant's own affidavit conceded this. Further, the order of Mbogholi Msagah J of 24th November 2009 shows the previous suit was struck out for abuse of process, not dismissed on merits; a struck-out suit leaves the party free to litigate afresh.

p. 13
02

Whether the suit is barred by res sub-judice (Section 6, Civil Procedure Act) by virtue of Nairobi HCC No. 336 of 2003

Holding

The rule of sub-judice is inapplicable: pleadings of the alleged pending suit were not exhibited, and in any event Section 6 provides for stay, not striking out.

Reasoning

The 69th Defendant failed to annex the pleadings of HCC No. 336 of 2003, making comparison impossible and attracting an adverse inference. There was also doubt whether that suit was pending or terminated in 2010, a question fit only for plenary hearing. Even if sub-judice were established, Section 6 mandates staying the later suit pending determination of the earlier one; it cannot ground striking out a pleading.

p. 15
03

Whether the suit is time-barred under Sections 4(2) and 7 of the Limitation of Actions Act

Holding

The suit was filed timeously; the cause of action accrued in April 2018 when the impugned titles were procured, and the suit was filed in June 2018.

Reasoning

Limitation is assessed from the plaint itself. Paragraphs 18 and 19 of the plaint show the plaintiff took possession in 2003 and that the 1st to 67th Defendants purported to acquire illegal titles on or about 27th April 2018, threatening dispossession. Only about two months elapsed before filing. Moreover, limitation was raised via preliminary objection, so the court could not interrogate factual issues of occupation and evidence.

p. 16
04

Whether the suit amounts to an abuse of the due process of the court warranting striking out

Holding

The suit raises serious and plausible factual issues on the propriety of titles that can only be resolved at a plenary hearing; it is not an abuse of process.

Reasoning

The Attorney General's defence confirms the plaintiff's ownership and pleads that the impugned subdivisions and titles are unlawful and void; the National Land Commission denied involvement and stated its mandate under Section 14(1) of the NLC Act lapsed before determining the dispute. With such conflicting factual assertions on the record, a microscopic analysis of voluminous documentation is not appropriate on a striking-out application, which succeeds only where the matter is plain and obvious.

p. 17

Legal principles established

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  • Res judicata applies only where the previous suit was heard and finally determined on merits; a suit that was struck out is not res judicata and the party is at liberty to file afresh subject to limitation.
  • The rule of res sub-judice under Section 6 of the Civil Procedure Act is a ground for staying a subsequent suit, not for striking it out.
  • A preliminary objection must be a pure point of law and cannot depend on facts requiring proof through evidence.
  • Striking out a suit is a draconian measure reserved for plain and obvious cases; a party should not be deprived of a proper trial where serious factual issues exist.

Court orders

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  1. 1.The Application dated 18th March 2022 be and is hereby Dismissed.
  2. 2.The Application dated the 11th March 2022 be and is hereby Dismissed.
  3. 3.The Preliminary objection dated the 21st March 2022 be and is hereby Dismissed.
  4. 4.The Preliminary Objection dated the 11th March 2022 be and is hereby Dismissed.
  5. 5.Costs in respect of the two Applications and the two (2) sets of Preliminary Objections be and are hereby awarded to the Plaintiff, 63rd, 64th, 65th and 70th Defendants and same shall be taxed and certified by the taxing officer of the court.

Authorities

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Legislation

  • Limitation of Actions ActSection 7; Section 4(2); Section 4(4)
  • Civil Procedure ActSection 7; Section 6
  • National Land Commission ActSection 14(1)

Cases cited (12)

  • John Florence Maritime Ltd v The Cabinet Secretary, Transport, Infrastructure & Public Works & Another
    (2015) eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd
    (2017) eKLR
  • Mburu Kinyua v Gachini Tutu
    (1978) KLR 69
  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another
    [2016] eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others
    (2010) eKLR
  • Karia & Another v The Attorney General and Others
    [2005] 1 EA 83
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2019] eKLR
  • Oraro v Mbajja
    [2005] eKLR
  • Industrial and Commercial Development Corporation v Daber Enterprises Limited
    [2000] eKLR
  • Wenlock v Moloney and Others
    [1965] 1 W.L.R. 1238
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited in the excerpt)

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, "Gidjoy Investments Limited v Zero Point Construction Company Ltd & 70 others (Environment & Land Case 301 of 2018) [2022] KEELC 3933 (KLR)", Case Analysis (2022). Not stated in the excerpt (Plaint dated 27th June 2018, ELC Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3933/eng@2022-08-03

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