Munyi v Muturi & another; Muturi & 2 others (Plaintiff); Kimani & 74 others (Defendant)
The bottom line
#Kenya's Embu Land Court refused to strike out a land counterclaim, ruling the same issues had already been decided and must now go to full trial.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is res judicata as it seeks the same orders under the same provisions already decided in the 22.11.2018 ruling on a preliminary objection
The applicants seek the same reliefs under the same statutory provisions as the earlier preliminary objection by the plaintiff in the main suit. Their attempt to distinguish their parcel Mbeti/Gachoka/473 fails because the counterclaim lays claim to the whole original Block 1209 Gachoka Adjudication Section, of which their parcel forms part. Re-deliberating would reopen matters already pronounced on by a competent court.
Abuse of court process / striking out
The counterclaim is not an abuse of process and should not be struck out or dismissed without trial
Whether Mbeti/Gachoka/473 was part of the award in Objection Cause 20/73 or only became subject in Appeal 77/75 is a matter for trial. The respondents must be given an opportunity to prove their claim. The jurisprudence on striking out requires plain cases; this case is not plain, and parties have a fundamental right to be heard on the merits.
Removal of restriction
The prayer for removal of the restriction is rejected
Under sections 76-78 of the Land Registration Act, restrictions may be removed by the Registrar or the court, but the restriction here endures until Embu ELC Case No. 83 of 2016 is heard and determined, which has not occurred. The applicants, as the parties seeking removal, bore the onus of justifying premature removal and failed to do so; indeed no party addressed the issue in submissions.
Legal principles established
#- A court cannot reopen an issue already decided by a court of competent jurisdiction; res judicata bars re-litigation even where a party seeks to separate itself from the earlier determination
- Parties cannot evade res judicata by adding other parties or causes of action in a subsequent suit
- Striking out a pleading is a draconian act resorted to only in plain cases; a suit showing a semblance of a cause of action should proceed to trial
- A restriction on title should not be removed prematurely where the condition for its endurance has not occurred
Court orders
#- 1.The Applicant's Notice of Motion dated 07.04.2022 dismissed in its entirety with costs to the Respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; motion under sections 4(1) and 7 of the Limitation of Actions Act, sections 1A, 1B and 3A of the Civil Procedure Act and Rule 51(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyi v Muturi & another; Muturi & 2 others (Plaintiff); Kimani & 74 others (Defendant)", Case Analysis (2023). Environment & Land Case 83 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21934/eng@2023-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.