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ELCStruck OutEnvironment & Land Petition 315 of 2015· [2022] KEELC 15187 (KLR)

Suter v Rosi & 5 others

Environment and Land Court
6 December 2022
NMN.A. Matheka
1,900 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a land petition as an abuse of process, ruling that unhappy litigants must appeal, not file fresh suits.

What this practically means

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Executive summary

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This ruling by N.A. Matheka, J of the Environment and Land Court at Mombasa disposed of an application dated 18 July 2022 by the 3rd defendant, Abdulhakim Abdalla, seeking striking out of the petitioner's petition under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 2 rule 15 of the Civil Procedure Rules. The applicant argued the petition, concerning subdivision number 1610 Section I Mainland North, was res judicata, the same subject matter having been litigated in HCC No 286 of 2007, HCC No 151 of 2006, HCC No 204 of 1998 and HCC No 24 of 2009, all determined, and that the registered owner had already succeeded in striking out the petition against him in a ruling by CK Yano, J on 24 January 2019. The petitioner opposed, contending the prior matters were all struck out rather than heard on merit, that the deponent lacked authority to swear the supporting affidavit, and that he was enforcing constitutional rights and raising grave issues of fraud and corruption. The court restated the doctrine of res judicata under section 7 of the Civil Procedure Act, applying the conjunctive elements set out in IEBC v Maina Kiai and the public-interest rationale in John Florence Maritime Services. Perusing the pleadings, it found the subject matter identical, the parties similar, and the prior suits determined. It held the petitioner, if aggrieved by the earlier rulings, ought to have appealed rather than file a fresh petition. The court found the petition res judicata and an abuse of the court process, struck it out against all respondents, and awarded costs to the respondents.

Key legal issues

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01

Whether the Petition is res judicata

Holding

Yes - the same subject matter (subdivision number 1610 Section I Mainland North) and similar parties featured in HCC No 286 of 2007, HCC No 151 of 2006, HCC No 204 of 1998 and HCC No 24 of 2009, which suits were determined

Reasoning

The court perused the prior pleadings and found the subject matter identical and the parties similar. Section 7 CPA bars trying a matter directly and substantially in issue in a former suit between the same parties, heard and finally decided by a competent court. The IEBC v Maina Kiai elements are conjunctive and were satisfied. The proper remedy against the striking-out rulings was appeal, not a fresh petition.

02

Whether the Petition is an abuse of the court process warranting striking out under Order 2 rule 15

Holding

Yes - the Petition was struck out against all respondents

Reasoning

Re-litigation of a conclusively determined matter wastes judicial time and resources. The doctrine of res judicata protects public interest by bringing finality to litigation; a multiplicity of suits over the same issue is an abuse. The petitioner's allegations of fraud and corruption did not save the petition since the issues had already been determined.

Legal principles established

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  • Res judicata requires the same matter directly and substantially in issue, between the same parties or those under whom they claim, litigating under the same title, heard and finally determined by a competent court - the elements are conjunctive
  • A party aggrieved by a striking-out ruling should appeal rather than file a fresh suit by way of petition

Court orders

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  1. 1.The Petition is struck out against all the respondents
  2. 2.Costs of the application and of the petition awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A, 63(e) and 7
  • Civil Procedure RulesOrder 2 rule 15; Order 51
  • Constitution of KenyaArticle 159

Cases cited (2)

  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    (2017) eKLR

    Conjunctive elements of res judicata and its role in bringing finality to litigation

  • John Florence Maritime Services Limited & another vs Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR

    Public interest rationale of res judicata; economic use of court resources and stability of judgments

Jurisdiction invoked
Article 159 of the Constitution of Kenya; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 2 rule 15 and Order 51 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, "Suter v Rosi & 5 others", Case Analysis (2022). Environment & Land Petition 315 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15187/eng@2022-12-06

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