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ELCPartially AllowedEnvironment & Land Case E011 of 2021· [2023] KEELC 16413 (KLR)

Osoro v Charo & 5 others

Environment and Land Court
22 March 2023
2,414 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to kill a land dispute as res judicata and instead merged two related Kilifi cases into one hearing.

What this practically means

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Executive summary

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This ruling by M A Odeny J of the Environment and Land Court at Malindi determined two competing applications: the plaintiff's Notice of Motion dated June 22, 2022 seeking transfer and consolidation of Kilifi PMCC No 248 of 2018 with this file as the lead file, and the 1st to 3rd defendants' Notice of Motion dated September 13, 2021 seeking a stay of the suit as res judicata and sub judice, or in the alternative striking out of the Amended Plaint and dismissal of the suit. The plaintiff, who had sued for trespass and faced a counterclaim founded on adverse possession, argued that both suits raised common questions of law and fact and that consolidation would save costs, judicial time and avoid conflicting decisions. The defendants contended that Kilifi Miscellaneous Land Case No 1 of 2021 had been determined on merit on March 16, 2021, rendering this suit res judicata. The court framed two issues: whether the suit should be struck out as res judicata, and whether consolidation should be ordered. On the first, it held that the prior Kilifi application had been dismissed for want of a plaint, and a dismissal for want of jurisdiction is not a determination on merit, so res judicata was not established. On the second, applying authorities on consolidation, the court found the two causes revolve around the same subject matter with substantially common issues, and exercised its discretion in favour of transfer and consolidation. The plaintiff's application was allowed as prayed, the defendants' application dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the suit is res judicata Kilifi Miscellaneous Land Case No 1 of 2021

Holding

No - the prior application was dismissed because it was filed without a plaint, i.e. for want of jurisdiction, so it was not heard and finally decided on merit under Section 7 of the Civil Procedure Act

Reasoning

The court set out Section 7 of the Civil Procedure Act and Henderson v Henderson, then noted that the earlier Kilifi application seeking a stay on res judicata grounds was dismissed because it was filed without a plaint on which to ground an application for an injunction. Since a dismissal for want of jurisdiction is not a determination on merit, the res judicata threshold was not met.

02

Whether Kilifi PMCC No 248 of 2018 should be transferred and consolidated with this suit

Holding

Yes - the two causes revolve around the same subject matter and raise substantially common issues of law and fact; consolidation serves the overriding objective of the Civil Procedure Act

Reasoning

Relying on P P Gupta v East Asiatic Co, Law Society of Kenya v Center for Human Rights & Democracy, and Joseph Okoyo v Edwin Dickson Wasunna, the court held that consolidation avoids multiplicity of litigation, saves costs, time and effort, and enables expeditious disposal where the same parties litigate substantially the same issues. The discretion was therefore exercised in favour of consolidation.

p. 5

Legal principles established

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  • Where a matter or application is dismissed for want of jurisdiction, it cannot be said to have been heard and determined on merit for purposes of res judicata
  • Consolidation is appropriate where suits raise substantially common issues of law and fact between the same parties, to avoid multiplicity of litigation

Court orders

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  1. 1.Kilifi PMCC No 248 of 2018 transferred and consolidated with this file for hearing as one, with this file as the lead file
  2. 2.The 1st to 3rd defendants' application for striking out on grounds of res judicata and sub judice dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 6 and 7
  • Civil Procedure RulesOrder 21 [1]

Cases cited (11)

  • Stumberg & Another v Potgieter
    (1970) EA 323

    Consolidation should be ordered where there are common questions of law or fact of sufficient importance to warrant disposal at the same time

  • Ethics and Anti-Corruption Commission v Charles Nderitu Maitai & 13 Others
    [2021] eKLR

    Situations in which consolidation of suits can be ordered

  • Korean United Church of Kenya and 3 Others v Seng Ha Sang
    [2014] eKLR

    Main purpose of consolidation is to save costs, time and effort by treating several actions as one

  • Elizeba Mboci Titima v Stephen Njeru Titima
    [2019] eKLR

    Transfer and consolidation of suits; distinguishing feature where plaintiffs differ

  • Philes Nyokabi Kamau v Industrial & Commercial Development Corporation
    (2017) eKLR

    Res judicata - issues ought to have been raised in the defence rather than a new suit

  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    (2017) eKLR

    Res judicata

  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others
    [2015] eKLR

    Rationale of res judicata - end to litigation and protection from repetitive litigation

  • Henderson v Henderson
    (1843) 67 ER 313

    Scope of the plea of res judicata - whole case must be brought forward

  • P P Gupta v East Asiatic Co
    AIR 1960 All 184

    Object of consolidation is to avoid multiplicity of litigation between the same parties

  • Law Society of Kenya v Center for Human Rights & Democracy & 12 Others
    (2014) eKLR

    Consolidation serves the interests of justice where parties and central issue are the same

  • Joseph Okoyo v Edwin Dickson Wasunna
    (2014) eKLR

    Consolidation achieves the overriding objective of the Civil Procedure Act - expeditious disposal

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court; Sections 6 and 7 of the Civil Procedure Act (Cap 21)

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, "Osoro v Charo & 5 others", Case Analysis (2023). Environment & Land Case E011 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16413/eng@2023-03-22

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