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ELCStruck OutELC Case of Mombasa (plaint dated 4th June 2021)· [2024] KEELC 2 (KLR)

Margrove Investments Limited v Chief Land Registrar & 3 others (Environment & Land Case 105 of 2021) [2024] KEELC 2 (KLR)

Environment and Land Court
17 January 2024
SKS. M. Kibunja
2,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a Kshs.184 million land compensation suit because the same issues were already decided in earlier cases, even with new parties added.

What this practically means

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Executive summary

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The 1st to 3rd defendants (the Chief Land Registrar, the Cabinet Secretary Ministry of Lands and the Attorney General, with the National Land Commission as 4th defendant) raised a preliminary objection dated 4th April 2023 arguing that Mangrove Investments Limited's suit seeking Kshs.175 million as market value of L.R No. 3615/VI/MN plus Kshs.8,966,306 as purchase price, rates and rents was res judicata under section 7 of the Civil Procedure Act. The plaintiff had purchased the property in 2002, learned in 2008 it was reserved for the National Water Conservation and Pipeline Corporation, and sued in Mombasa HCCC 103 of 2009, where its title was cancelled and suit dismissed with costs by judgment of 20th September 2018. That included refusal of an alternative prayer for Kshs.100 million compensation. The Court of Appeal dismissed the plaintiff's appeal (Civil Appeal No. 50 of 2019) on 3rd April 2020. The plaintiff then filed the present suit for compensation. The plaintiff argued the parties and issues differed. Relying on section 7 and the Diocese of Eldoret Trustees case, the court held that the compensation issue had been raised and determined in the earlier suit between the same plaintiff under the same title, and that adding new defendants could not circumvent res judicata. The preliminary objection was upheld, the suit was struck out with costs to the defendants, costs following the event under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the suit is res judicata Mombasa ELC No. 103 of 2009 and Mombasa Civil Appeal No. 50 of 2019

Holding

Yes. The compensation claim was raised in prayer (f) of the earlier plaint and determined by a competent court; the same plaintiff is litigating under the same title over the same property, and joinder of new parties does not avoid the bar.

Reasoning

Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties or those claiming under them, litigating under the same title, before a competent court, finally decided. The plaintiff had included an alternative prayer for Kshs.100 million compensation in the earlier suit, which was refused; Explanation 5 deems ungranted relief refused. Adding the Chief Land Registrar, CS Ministry of Lands and NLC as new defendants cannot sanitize the suit.

p. 5
02

Whether this court has jurisdiction in view of the earlier decisions

Holding

No; the suit is res judicata and an abuse of process, so the court lacks jurisdiction to entertain it.

Reasoning

Having found that the issues are res judicata, the corollary is that the court cannot entertain the suit; the preliminary objection succeeds and the suit is struck out.

p. 6

Legal principles established

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  • Adding or subtracting litigants in a suit related to a previous suit with the same subject matter does not circumvent res judicata.
  • A compensation claim raised (though not granted) in a former suit over the same property is res judicata in a subsequent suit, even if the amount differs or parties are added.

Court orders

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  1. 1.The defendants' preliminary objection dated the 4th April 2023 on res judicata is upheld.
  2. 2.The plaintiff's suit commenced through the plaint dated the 4th June 2021 is struck out with costs to the defendants.

Authorities

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Legislation

  • Civil Procedure Act Cap 21section 7
  • Civil Procedure Act Cap 21section 27
  • Constitution of KenyaArticle 40

Cases cited (3)

  • IEBC vs Maina Kiai & 5 Others
    (2017) eKLR
  • Diocese of Eldoret Trustees (Registered) v Attorney General (on behalf of the Principal Secretary Treasury) & Another
    [2020] eKLR
  • Henderson vs Henderson
    (1843) 67 ER 313
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court); preliminary objection under section 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, "Margrove Investments Limited v Chief Land Registrar & 3 others (Environment & Land Case 105 of 2021) [2024] KEELC 2 (KLR)", Case Analysis (2024). ELC Case of Mombasa (plaint dated 4th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/2/eng@2024-01-17

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