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ELCStruck OutELC Case of 2022 (Plaint dated March 22, 2022)· [2023] KEELC 530 (KLR)

Mwau v Kivumbu (Administrator of the Estate of the Late Kivumbu Ndwiwa - Deceased); Makueni (Interested Party) (Environment & Land Case E005 of 2022) [2023] KEELC 530 (KLR)

Environment and Land Court
25 January 2023
3,981 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Makueni landowner's third attempt to reopen a 1991 boundary dispute was struck out because courts won't hear the same land fight twice.

What this practically means

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Executive summary

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By a Plaint dated March 22, 2022, Francis Kimilu Mwau sued Hallan Mutua Kivumbu and the Land Registrar, Makueni County, seeking preservation of the status quo, a direction to the Land Registrar to fix the boundary between land parcels Nzaui/Kalamba/594 and Nzaui/Kalamba/638 in accordance with the District Surveyor's Report of September 27, 1991 adopted in Machakos Civil Case No 43 of 1991, rectification of the registers and the Registry Index Map, rectification of title, and costs. The 1st Defendant filed a preliminary objection dated April 14, 2022 contending that the suit was res judicata, having been determined in Machakos RMCC No 43 of 1991, Machakos HCCA No 80 of 1992 and Makueni ELC No 13 of 2017, and that the court lacked jurisdiction. The objection was canvassed by written submissions. Relying on Mukisa Biscuits, Oraro v Mbaja and Nitin Properties, the court found the objection a pure point of law. Applying Section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, the court held that the same boundary issue between the same parties or their successors, litigating under the same title, had been heard and finally determined by competent courts: judgment was entered in Machakos RMCC No 43 of 1991 on October 1, 1992 fixing the boundary; the appeal in HCCA No 80 of 1992 was dismissed for want of prosecution; and Makueni ELC No 13 of 2017 was struck out as res judicata. The preliminary objection was upheld and the suit struck out with costs to the Defendant.

Key legal issues

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01

Whether the suit is res judicata

Holding

Yes. The boundary dispute between Nzaui/Kalamba/594 and Nzaui/Kalamba/638 was directly and substantially in issue and determined in Machakos RMCC No 43 of 1991 between the same parties or those claiming under them, litigating under the same title, by competent courts.

Reasoning

The court tested the suit against the conjunctive elements of Section 7 of the Civil Procedure Act as set out in IEBC v Maina Kiai. The cause of action and reliefs sought were wholly similar to the earlier suits; the plaintiff was a plaintiff in the 1991 suit, the 1st Defendant is administrator of the estate of the defendant therein; the former suits were heard and determined by competent courts. All elements were satisfied.

p. 7
02

Whether the objection was a proper preliminary objection on a pure point of law

Holding

Yes. The plea of res judicata could dispose of the matter without ascertaining facts, fitting the Mukisa Biscuits definition.

Reasoning

Relying on Mukisa Biscuits, Oraro v Mbaja and Nitin Properties, the court held that a preliminary objection must rest on a pure point of law, assumed facts pleaded are correct, and cannot require ascertainment of facts or exercise of discretion. The plea of res judicata, verifiable from the record of prior judgments, met that description.

p. 8

Legal principles established

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  • All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively, not disjunctively
  • A preliminary objection must be a pure point of law and cannot be raised if any fact has to be ascertained
  • Res judicata is founded on public policy requiring finality in litigation and protecting parties from being vexed twice over the same cause

Court orders

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  1. 1.The 1st Defendant's Preliminary Objection dated April 14, 2022 is upheld
  2. 2.The suit dated March 22, 2022 is struck out with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 7
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 27
  • Environment and Land Court ActSection 13

Cases cited (9)

  • Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Oraro Vs Mbaja
    (2005) eKLR
  • Nitin Properties Ltd Vs Singh Kalsi & Another
    (1995) eKLR
  • Independent Electoral & Boundaries Commission Vs Maina Kiai & 5 Others
    [2017] eKLR
  • Nicholas Njeru Vs the Attorney General and 8 Others
    Civil Appeal No 110 of 2011 [2013] eKLR
  • Omondi Vs National Bank of Kenya Ltd and Others
    (2001) EA 177
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Machakos Civil Case No 43 of 1991 Francis Kimilu Mwau & Another versus Kivumbu Ndwiwa
  • Machakos HCCA No 80 of 1992
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (jurisdiction over disputes concerning land)

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, "Mwau v Kivumbu (Administrator of the Estate of the Late Kivumbu Ndwiwa - Deceased); Makueni (Interested Party) (Environment & Land Case E005 of 2022) [2023] KEELC 530 (KLR)", Case Analysis (2023). ELC Case of 2022 (Plaint dated March 22, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/530/eng@2023-01-25

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