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ELCDismissedEnvironment & Land Case 24 of 2022· [2023] KEELC 18015 (KLR)

Mukunya Mugo 'A' & Another v Elizabeth Mugure Mukunya

Environment and Land Court
8 June 2023
LGL. N. Gacheru
4,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that a suit struck out earlier can be filed afresh, and dismissed the attempt to block the new case.

What this practically means

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Executive summary

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The Defendant, Elizabeth Mugure Mukunya, brought a Notice of Motion dated 10th March 2022 seeking a declaration that the Environment and Land Court at Murang'a had no jurisdiction over the Plaintiffs' suit because it was res judicata Murang'a ELC No. 111 of 2017, determined on 28th March 2019, plus costs in the cause. The Plaintiffs, Mukunya Mugo 'A' and Winnie Wambui, opposed, arguing the application was misconceived, that the earlier suit had been struck out as non-suited rather than dismissed, that the parties differed (Winnie Wambui was not a party to the earlier suit), and that continuing trespass gives rise to fresh causes of action. The Defendant also contended the fresh suit was an attempt to fill gaps in the earlier case. The Court, L.N. Gacheru J, framed four issues: jurisdiction, res judicata, merit of the application, and costs. It held that jurisdiction, being a creature of statute under Section 13 of the Environment and Land Court Act, exists for claims over title to and occupation of land, and that a res judicata objection does not oust that jurisdiction; further, jurisdiction may be raised at any stage. On res judicata, applying Section 7 of the Civil Procedure Act and John Florence Maritime Services, the Court found the earlier suit was struck out as non-suited, not dismissed on the merits, and that Winnie Wambui was not a party to it, so the present suit was not barred. The application was dismissed entirely with costs to the Plaintiffs, and the suit was directed to be set down for expeditious hearing.

Key legal issues

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01

Whether the Court has jurisdiction notwithstanding the res judicata objection

Holding

The Court has jurisdiction; a claim of res judicata does not oust jurisdiction under Section 13 of the ELC Act

Reasoning

Jurisdiction is a creature of statute. The claim concerns title to and occupation of land, falling squarely within Section 13 of the Environment and Land Court Act. The objection that the suit is res judicata goes to whether the suit should be tried, not to the Court's statutory power to hear land disputes, and therefore does not deprive the Court of jurisdiction.

p. 6
02

Whether the issue of jurisdiction can be raised late

Holding

Yes - jurisdiction can be raised at any stage, even by the Court itself

Reasoning

Although the Defendant raised jurisdiction about 10 months after filing her Defence and Counterclaim, and the Plaintiffs argued the point was raised only in submissions without being pleaded, the Court held that jurisdiction is a pure point of law raisable at any time, and declined to ignore the submissions on that ground.

p. 6
03

Whether the suit is res judicata Murang'a ELC No. 111 of 2017

Holding

The suit is not res judicata because the former suit was struck out as non-suited, not dismissed on the merits, and the parties differ

Reasoning

The judgment of 28th March 2019 struck out ELC No. 111 of 2017 as non-suited because Winnie Wambui, a necessary trustee party, was not joined. A struck-out suit is not 'heard and finally decided' for res judicata purposes, and the 2nd Plaintiff in this suit was not a party to the former suit. The Plaintiffs were therefore entitled to file a fresh suit.

Legal principles established

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  • Jurisdiction being an issue of law can be raised at any stage of the proceedings
  • A suit struck out as non-suited is not heard and finally decided on the merits, so res judicata does not bar a fresh suit

Court orders

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  1. 1.The Notice of Motion application dated 10th March 2022 is dismissed entirely
  2. 2.Costs of the application awarded to the Plaintiffs/Respondents
  3. 3.The suit to be set down for hearing expeditiously

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 27
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (12)

  • Njue Ngai Vs Ephantus Njiru Ngai & Another
    (2016) eKLR

    Elements of res judicata; a party cannot evade the doctrine by re-christening a fresh suit

  • Kuna Runo & Another Vs Kipsang Langat
    (2005) eKLR

    Court should not assist a party to fill gaps that led to dismissal of an earlier suit

  • Attorney General & Another
    (2012) eKLR

    Courts must guard against litigants evading res judicata by introducing new causes of action

  • Juliana Akinyi Owino Vs Kiarie Shoe Stores
    (2014) eKLR

    A suit struck out as non-suited was not determined on the merits

  • Isaack Ben Mulwa Vs Jonathan Mutunga Mweke
    Civil Appeal No. 60 of 2018 (2018) eKLR

    Each act of trespass is a fresh cause of action; continuing trespass not barred by res judicata

  • ASSL Vs Asmb
    (2020) eKLR

    New issues cannot be raised in submissions

  • Odoyo Osodo VS Rael Obare Ojuok and 4 others
    (2017) eKLR

    Court cannot allow reopening of a case so a party can fill gaps in evidence

  • Ndimu Vs Ndumi & Another
    (2008) EA 269

    A question of jurisdiction ought to be raised at the earliest opportunity

  • Evelyn Kowido & Another t/a Evedel Enterprises Vs Bamburi Supermarkets Ltd
    Mombasa HCCA No. 18 of 2006

    Maxims underlying the doctrine of res judicata

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

    Ingredients of res judicata

  • Karia & Another v the Attorney General and Others
    [2005] 1 EA 83

    Ingredients of res judicata as restated in John Florence Maritime

  • Samuel Kiiru Gitau Vs John Kamau Gitau
    Nairobi HCCC No. 1249 of 1998

    For res judicata the Court must have previously exercised its judicial mind and reached a conclusion on the contested matter

Jurisdiction invoked
Section 13 of the Environment and Land Court Act, pursuant to Article 162(2)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Mukunya Mugo 'A' & Another v Elizabeth Mugure Mukunya", Case Analysis (2023). Environment & Land Case 24 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18015/eng@2023-06-08

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