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ELCStruck OutEnvironment & Land Case E017 of 2023· [2023] KEELC 18791 (KLR)

Kiharu & 2 others v Muchene

Environment and Land Court
12 July 2023
LMLucy N. Mbugua
869 words in judgment
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The bottom line

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A Kenyan court struck out a land dispute because it had already been decided, ruling that adding new family members as plaintiffs cannot revive a lost case.

What this practically means

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Executive summary

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The Plaintiffs, children of the late Caxton Muchiri Muchene and Hottensiah Gichiru Mukiri, sued their nephew, the Defendant, claiming entitlement to one-fifth each of Title Number Dagoretti/Uthiru 884 on the basis that its registration was encumbered by a customary trust. By a Notice of Motion dated January 24, 2023, they sought a temporary injunction restraining the Defendant from trespassing on, selling, transferring or disposing of the property pending trial. The Defendant opposed, contending that the same issues had been determined in Milimani ELC No. 368 of 2017, Raoul Emmanuel Muchene & Another v Rachael Nduta Mwaura, decided on October 19, 2022, in which the 3rd Plaintiff, then defendant, raised a counterclaim with identical prayers and was injuncted from interfering with the land after failing to prove her customary trust and adverse possession claims. He was executing the decree in that suit when the present suit was filed without disclosure of it. The court framed two issues: whether the suit was res judicata and, if not, whether the injunction should issue. Relying on Section 7 of the Civil Procedure Act and authorities including Siri Ram Kaura v MJE Morgan and Gladys Nduku Nthuki v Letshego Kenya Limited, the court held that adding parties cannot evade res judicata where claims rest on the same title. The suit and application were struck out with costs to the Defendant.

Key legal issues

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01

Whether the suit is res judicata to ELC 368 of 2017 (Muchene v Mwaura)

Holding

The suit is res judicata; the issue of whether the Defendant's registration as owner of Dagoretti/Uthiru 884 was encumbered by customary trust was already determined in the former suit

Reasoning

In Muchene v Mwaura (ELC 368 of 2017), decided 19 October 2022, the 3rd Plaintiff's claims on customary trust and adverse possession over the same title were rejected and she was injuncted. Adding the 1st and 2nd Plaintiffs as parties does not negate that finding; the Plaintiffs peg their claim under the same title, and the suit was filed while the Defendant was executing the decree in the former suit, without disclosing it, contrary to Section 7 of the Civil Procedure Act.

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Whether a temporary injunction should issue pending hearing of the suit

Holding

Not considered on the merits; the application fell with the suit upon the finding of res judicata

Reasoning

Having found the suit res judicata, the court held it need not delve into the merits of the application dated January 24, 2023 seeking temporary injunctive relief against interference with Title Number Dagoretti/Uthiru 884.

p. 2

Legal principles established

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  • A party cannot evade res judicata by adding new parties or issues to give a subsequent suit a different complexion from the former suit
  • The mere addition of parties in a subsequent suit does not render res judicata inapplicable where the added parties peg their claim under the same title as parties in the earlier suit

Court orders

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  1. 1.The Notice of Motion application dated January 24, 2023 is struck out
  2. 2.The entire suit is struck out
  3. 3.Costs of the suit are awarded to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (4)

  • Muchene v Mwaura (Environment & Land Case 368 of 2017) [2022] KEELC 13722 (KLR)
    [2022] KEELC 13722 (KLR)

    Former suit in which the 3rd Plaintiff's customary trust and adverse possession claims over Dagoretti/Uthiru/884 were rejected and she was injuncted

  • Siri Ram Kaura v MJE Morgan, CA 71/1960 (1961) EA 462
    (1961) EA 462

    Parties cannot evade res judicata by conjuring up parties or issues to give a case a different complexion

  • Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende
    [2022] eKLR

    Source in which Siri Ram Kaura v MJE Morgan was cited

  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR

    Mere addition of parties does not defeat res judicata where claims are pegged under the same title

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes concerning title to land (Title Number Dagoretti/Uthiru 884)

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, "Kiharu & 2 others v Muchene", Case Analysis (2023). Environment & Land Case E017 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18791/eng@2023-07-12

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