Zuma & 46 others v Said & 4 others (Environment & Land Case E005 of 2022) [2023] KEELC 310 (KLR)
The bottom line
#The court kept the plaintiffs' land case alive but paused it, ruling that earlier cases settled by consent never got a real hearing and so cannot block a fresh suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata
No. Both former suits were resolved by consent (one withdrawn, one by an eviction consent) and were not heard and finally determined on the merits as required by section 7 of the Civil Procedure Act; the consents are also contested with allegations of fraud and the plaintiffs claim they were not party to the consent in ELC No 24 of 2021.
Section 7 requires the matter to have been directly and substantially in issue and heard and finally determined in a former suit between the same parties. Relying on Michael Bett Siror v Jackson Koech, the court held that consents, withdrawals and dismissals are 'technical knockouts' that do not amount to final determination. The disputed consents and non-participation of the plaintiffs further precluded upholding the doctrine.
Whether the suit is sub judice and an abuse of process
Suit No 39 of 2020 (now ELC 180 of 2021) remains active with pending applications, so the present suit is sub judice relative to it, warranting a stay; but the suit is not an abuse of process as the plaintiffs are a faction that delinked from the withdrawn ELC No 24 of 2021.
The court examined the proceedings in ELC 180 of 2021 and found pending applications that, if determined in the applicants' favour, may require a hearing on the merits. To avoid parallel proceedings it stayed the present suit. Since ELC No 24 of 2021 was withdrawn and no longer exists, the forum-shopping complaint failed.
Whether the plaintiff lacks authority to swear the affidavit for the other plaintiffs
Not decided against the plaintiffs; the application failed on its principal grounds and no order was made on this issue.
The plaintiffs' deponent asserted he had the authority of the other applicants, and the court disposed of the application on the res judicata and sub judice findings without striking out the suit for want of written authority.
Legal principles established
#- A suit compromised by consent, without hearing and final determination of the issues, does not satisfy section 7 of the Civil Procedure Act for purposes of res judicata
- Dismissal or withdrawal of a suit may be a judgment but does not meet the res judicata requirement of hearing and final determination
- Where a related suit with pending applications is active, the court may stay subsequent proceedings pending its determination
Court orders
#- 1.Proceedings in the present suit stayed pending the hearing and determination of the applications in Kwale ELC No 180 of 2021 (formerly Mombasa ELC No 39 of 2020)
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 7 of the Civil Procedure Act and Order 2 Rule 15, Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zuma & 46 others v Said & 4 others (Environment & Land Case E005 of 2022) [2023] KEELC 310 (KLR)", Case Analysis (2023). Not stated in judgment (Ruling on Notice of Motion dated 14/4/2022 in Kwale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/310/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.