Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment (the application dated August 26, 2022; a related matter, ELC Misc No 31 of 2020, is referenced)· [2023] KEELC 118 (KLR)

Paul Muhoro Muriithi & another v Wanjiku Ndwaru & another (names of 1st respondent inferred from the replying affidavit; full caption not printed in the extract)

Environment and Land Court
19 January 2023
807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to revive a lapsed land case, ruling the matter was already decided and the applicants' own non-compliance caused the loss.

What this practically means

#

Executive summary

#
The 2nd respondent raised a preliminary objection dated October 18, 2022 against the applicants' notice of motion dated August 26, 2022, contending that the court lacked jurisdiction, was functus officio having earlier determined the matter (a ruling delivered July 14, 2022), and that the application was res judicata, incompetent and an abuse of process. The 1st respondent, Wanjiku Ndwaru, asserted ownership of Nairobi/block/63/455 and noted the issues had been dealt with in Milimani CMCC No 2323 of 2011 (Wanjiki Ndwaru v Peter Kiboi Githu & 3 others). The 2nd respondent also relied on a ruling of Hon Justice Okongo dated October 21, 2021 in ELC Misc No 31 of 2020. The applicants, through an affidavit of Paul Muhoro Muriithi, urged that they were ready to comply with Justice Okongo's orders and deserved a fair hearing. Justice EK Wabwoto framed a single issue: whether the preliminary objection was merited. Applying Mukhisa Biscuits and Nitin Properties on the pure-point-of-law test, and Section 7 of the Civil Procedure Act on the five elements of res judicata, the court found the motion sought to revive prayers that had lapsed for the applicants' non-compliance with prior orders. The issues were res judicata, the applicants had had their day in court and were authors of their own misfortune, and the court, having discharged its duty, was functus officio. The preliminary objection was upheld with costs payable to the respondents, and the application was not entertained as litigation had to come to an end.

Key legal issues

#
01

Whether the preliminary objection is merited

Holding

It is merited; the application is res judicata, the court is functus officio, and the objection was upheld with costs

Reasoning

The court applied the Mukhisa Biscuits test and Nitin Properties on pure points of law, then applied Section 7 of the Civil Procedure Act on res judicata. It found the notice of motion sought to revive prayers that had lapsed for non-compliance with prior orders; the issues had already been litigated and determined, so litigation had to come to an end and the court was functus officio.

p. 3
02

Whether the application is res judicata

Holding

Yes - the issues raised had been previously litigated and determined, and the applicants had failed to comply with earlier orders

Reasoning

A perusal of the notice of motion showed the applicants sought to revive prayers that lapsed when they failed to comply with orders previously granted. The subject matter had been dealt with before, including in Milimani CMCC No 2323 of 2011, and determined by this court, satisfying the Section 7 elements.

p. 2

Legal principles established

#
  • A preliminary objection must be raised on a pure point of law, on the assumption that all facts pleaded by the other side are correct
  • For res judicata to be upheld, the party raising it must satisfy the five essential elements under Section 7 of the Civil Procedure Act
  • A court that has fully performed its functions becomes functus officio and lacks competence to reopen the matter

Court orders

#
  1. 1.The preliminary objection dated October 18, 2022 is upheld with costs payable to the respondents
  2. 2.The application dated August 26, 2022 is dismissed (the court found it res judicata and held that it could not re-engage with the dispute)

Authorities

#

Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • Mukhisa Biscuits Manufacturing Co Ltd V West-End Distributors Limited
    (1969) EA 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Wanjiki Ndwaru vs Peter Kiboi Githu & 3 others (Milimani Commercial Court Chief Magistrate's Court Civil Case No 2323 of 2011)
Jurisdiction invoked
Not stated; the court determined a preliminary objection raising jurisdiction, functus officio and res judicata under Section 7 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Paul Muhoro Muriithi & another v Wanjiku Ndwaru & another (names of 1st respondent inferred from the replying affidavit; full caption not printed in the extract)", Case Analysis (2023). Not stated in the judgment (the application dated August 26, 2022; a related matter, ELC Misc No 31 of 2020, is referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/118/eng@2023-01-19

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