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ELCDismissedNot stated in the excerpt (suit commenced by Plaint filed 6th July 2022)· [2023] KEELC 842 (KLR)

Karatu & 21 others v Njuguna & another (Sued as the administrators of the Estate of David Nganga Njuguna); Njenga (Defendant) (Environment & Land Case E42 of 2022) [2023] KEELC 842 (KLR)

Environment and Land Court
16 February 2023
LOL. A. Omollo
2,728 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Nakuru ruled the buyers' land dispute could proceed because it differed in issues and parties from an earlier case.

What this practically means

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Executive summary

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The 1st and 2nd Defendants raised a preliminary objection dated 5th October 2022 arguing that the 21 Plaintiffs' suit, which seeks declarations of ownership, permanent injunction and specific performance over plots sold to them by the 3rd Defendant as agent, was res judicata Nakuru HC ELC No. 390 of 2016, a trespass suit in which judgment was delivered on 24th June 2021. The Plaintiffs opposed, arguing they were not parties to the former suit, the cause of action and reliefs differ, and that the judgment in ELC 390 of 2016 had been reviewed and set aside on 10th March 2022 with the matter set for fresh hearing. The court identified two issues: whether the suit is res judicata and who bears costs. Applying Section 7 of the Civil Procedure Act and the elements set out in IEBC v Maina Kiai and Uhuru Highway Development Ltd v Central Bank of Kenya, the court found that the former suit was founded on trespass seeking vacant possession, eviction and injunction, whereas the present suit seeks declaration of ownership and specific performance; further, none of the Plaintiffs participated in the former suit, so the parties and issues are not identical. Although the former judgment was final and on merits, the essential elements of res judicata were not met. The court held the suit is not res judicata, dismissed the preliminary objection with costs to the Plaintiffs.

Key legal issues

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01

Whether the present suit is res judicata Nakuru HC ELC No. 390 of 2016

Holding

No - the suit is not res judicata; the former suit was founded on trespass and different parties were involved

Reasoning

The former suit ELC 390 of 2016 was founded on trespass, seeking vacant possession, eviction and injunction against different defendants, with judgment entered only against the 4th Defendant. The present suit seeks a declaration of ownership, permanent injunction and specific performance for sale of plots. The parties are different - none of the Plaintiffs participated in the former suit. Although the former judgment was final and on merits, the identity of issues and parties required by Section 7 is absent, so the preliminary objection fails.

p. 6
02

Costs of the Preliminary Objection

Holding

Costs follow the event; Plaintiffs as successful parties get costs

Reasoning

Under Section 27 of the Civil Procedure Act, costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. Having failed in their preliminary objection, the 1st and 2nd Defendants were ordered to pay the Plaintiffs' costs.

p. 6

Legal principles established

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  • Res judicata requires the matter directly and substantially in issue in the former suit to be the same, between the same parties litigating under the same title, heard and finally determined by a competent court
  • Where the issues and parties in the former suit differ from the present suit, the bar of res judicata fails

Court orders

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  1. 1.The 1st and 2nd Defendant's Preliminary Objection dated 5th October 2022 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 7 including Explanations (1)-(6)
  • Civil Procedure Act (Cap 21)Section 27
  • Environment and Land Court ActSection 28

Cases cited (8)

  • Jaqueline Njeri Njuguna & Judy Wairimu Njuguna Vs Bishop Zablon Mbugua Karanja & 4 Others, Nakuru H.C ELC No. 390 of 2016
  • David Njoroge Vs Jemimah Njuguna, Naivasha CMCC No. 540 of 2008
  • David Njoroge V Jemimah Njuguna, Nakuru H.C Civil Appeal No. 94 of 2009
  • Nakuru H.C Civil Case No. 15 of 2010 (3rd Defendant v Jemimah Njuguna)
  • Gilbert K Kabage Vs Richard Maina Mutungi, Nakuru HC ELC No. 114 of 2016
  • Njue Ngai Vs Ephantus Njiru Ngai & Another
    [2016] eKLR, Civil Appeal No. 29 of 2015
  • Independent Electoral and Boundaries Commission Vs Maina Kiai & 5 Others
    Nairobi CA No. 105 of 2017 [2017] eKLR
  • Uhuru Highway Development Ltd Vs Central Bank of Kenya
    [1999] eRLK
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Environment and Land Court Act, Section 28 cited by parties)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karatu & 21 others v Njuguna & another (Sued as the administrators of the Estate of David Nganga Njuguna); Njenga (Defendant) (Environment & Land Case E42 of 2022) [2023] KEELC 842 (KLR)", Case Analysis (2023). Not stated in the excerpt (suit commenced by Plaint filed 6th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/842/eng@2023-02-16

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