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ELCPartially AllowedPetition (dated 9/12/2015), Kwale ELC — application dated 30/5/2022· [2023] KEELC 883 (KLR)

Mwandori & 4 others (All Suing for themselves and other Residents/Owners of Land Used for Sugar Growing at Kwale/Majoreni and Kidimu Areas) v Kwale International Sugar Company Ltd & 6 others; Muslims for Human Rights (MUHURI) (Interested Party) (Environment & Land Petition 24 of 2021) [2023] KEELC 883 (KLR)

Environment and Land Court
16 February 2023
3,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A land dispute against Kwale International Sugar Company survived Kenya's res judicata rules, but claims against two respondents who had died were struck out.

What this practically means

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Executive summary

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KISCOL, the 1st respondent, by application dated 30/5/2022 sought dismissal of the petitioners' constitutional petition on the ground that it was res judicata, the same parties having litigated identical land issues in OS No 133 of 2012 (Chari Chimambo Nyawa & Others v Kwale International Sugar Co Ltd), which Justice Yano dismissed on 18/5/2017; alternatively dismissal of the petition against the purported 3rd respondent, said to be deceased. The petitioners opposed, contending the supporting affidavit lacked authority, that the former suit was filed in the High Court and dismissed for want of prosecution under Order 17 rule 2, and that no death of the 3rd respondent was proved. The court framed two issues: res judicata and the competence of the suit against the 3rd respondent. Applying section 7 of the Civil Procedure Act and the conjunctive elements set out in IEBC v Maina Kiai, the court held the former court was competent (the file having been administratively transferred to the ELC per Karisa Chengo), and the parties substantially the same, but the issues differed — adverse possession versus article 40 constitutional violations, compensation, resettlement and historical injustices. Critically, the former suit was dismissed for want of prosecution without a judgment on the merits, a 'technical knockout' per Michael Bett Siror v Jackson Koech, so it was not finally determined. The plea of res judicata therefore failed. However, an uncontroverted death certificate showed the 3rd respondent, Abdalla Said Abdalla, died on 2/6/2000 before filing; following Viktar Maina Ngunjiri and Geeta Bharat Shah, the petition against him was struck out as a nullity. The suit against the 4th respondent, Zainabu Juma Salimini (died 16/4/2020), was found to have abated under Order 24 rule 4(4), no substitution having been effected within two years. The application partially succeeded; costs were in the cause. Judgment delivered by A.E. Dena, J, at Kwale on 16 February 2023.

Key legal issues

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01

Whether the petition is res judicata having regard to the former suit OS No 133 of 2012

Holding

It is not res judicata: the prayers and issues in the former adverse possession suit are different from the constitutional petition claims, and the former suit was dismissed for want of prosecution without a judgment on the merits

Reasoning

The court tested each element of section 7 conjunctively per the IEBC v Maina Kiai test. Though the parties substantially overlapped and the former court was competent (matters having been administratively transferred to the ELC), the issues differed — adverse possession versus article 40 constitutional violations — and the Order 17 rule 2 dismissal was a 'technical knockout' without final determination on the merits.

p. 6
02

Whether the court formerly seized of HCC No 133 of 2012 was competent

Holding

Yes — although filed in the High Court before establishment of the ELC, the file was administratively transferred to the Environment and Land Court pursuant to the Chief Justice's directives and an order by Justice A Emukule

Reasoning

Following Karisa Chengo, High Court judges are barred from hearing land matters, but pre-existing land cases were not rendered void; they were transferred to the ELC. The pleadings bore the Mombasa Environment and Land Division stamp. The competency element of res judicata was therefore satisfied.

p. 4
03

Whether the petition against the deceased 3rd respondent can stand

Holding

No — a suit against a person dead at filing is a nullity ab initio and must be struck out

Reasoning

KISCOL exhibited the death certificate of Abdalla Said Abdalla showing death on 2/6/2000, uncontroverted. Following Viktar Maina Ngunjiri, Japhet Nzila Muangi and Geeta Bharat Shah, the court held it was bound to find the suit against him a nullity.

p. 6
04

Whether the suit against the 4th respondent has abated

Holding

Yes — it abated by operation of law under Order 24 rule 4(4), more than two years having elapsed since her death on 16/4/2020 without substitution

Reasoning

The death certificate of Zainabu Juma Salimini was exhibited and uncontroverted. Substitution was not effected within the statutory two-year period, so the suit against her abated, following Titus Kiragu v Jackson Mugo Mathai.

p. 7

Legal principles established

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  • A suit dismissed for want of prosecution is a 'technical knockout' without a judgment on the merits and does not found a plea of res judicata
  • A suit filed against a person already deceased is a nullity ab initio and any judgment against a dead person cannot be sustained
  • Where a party dies and no substitution is effected within two years, the suit against that party abates by operation of law under Order 24 rule 4(4) of the Civil Procedure Rules
  • All elements of res judicata under section 7 of the Civil Procedure Act must be satisfied conjunctively, not disjunctively

Court orders

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  1. 1.Application fails on prayer (a) seeking dismissal of the petition — that prayer is declined
  2. 2.The petition as drawn and filed against the purported 3rd respondent is dismissed/struck out as a nullity, the 3rd respondent having died on 2/6/2000 before filing
  3. 3.It is ordered that the suit against the 4th respondent has abated by operation of the law under Order 24 rule 4(4) of the Civil Procedure Rules, more than two years having lapsed since her death on 16/4/2020 with no substitution
  4. 4.Costs shall be in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction over land matters; application brought under sections 1A, 1B and 3B of the Civil Procedure Act and Order 2 rule 15, Order 51 rule 1 of the Civil Procedure Rules 2010

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, "Mwandori & 4 others (All Suing for themselves and other Residents/Owners of Land Used for Sugar Growing at Kwale/Majoreni and Kidimu Areas) v Kwale International Sugar Company Ltd & 6 others; Muslims for Human Rights (MUHURI) (Interested Party) (Environment & Land Petition 24 of 2021) [2023] KEELC 883 (KLR)", Case Analysis (2023). Petition (dated 9/12/2015), Kwale ELC — application dated 30/5/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/883/eng@2023-02-16

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