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ELCStruck OutNot stated in the judgment (Notice of Motion dated 26th July 2023; suit dated 26th July 2023)· [2024] KEELC 135 (KLR)

Abdalla & another v Streeper (Environment & Land Case E011 of 2023) [2024] KEELC 135 (KLR)

Environment and Land Court
25 January 2024
2,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Mombasa's Environment and Land Court struck out a property trust suit because the same family dispute had already been decided by a Kadhi's court, and costs went to the Defendant.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs, sisters of the Defendant, brought a Notice of Motion dated 26th July 2023 under Order 40 of the Civil Procedure Rules, the Civil Procedure Act, the Land Registration Act and the Constitution, seeking temporary injunctions restraining the Defendant from evicting them, alienating or dealing with parcel Mombasa/Block XVI/875, a declaration that the property is trust property of the late Bai Said Abdalla bequeathed equally to her daughters, and an order of valuation. The Defendant filed a preliminary objection contending that the suit was res judicata, incompetent, without jurisdiction, frivolous and an abuse of process, and ought to be struck out. She showed that the same parties had previously litigated the same trust issue before the Kadhi in Succession Cause No. 304 of 2021 and Kadhi's Misc. Application No. 411 of 2021, both dismissed in rulings dated 7th December 2021 and 22nd June 2023 because the Kadhi's court lacked jurisdiction to declare a trust contrary to land registry entries. The court applied the Mukisa Biscuits and Oraro tests, held the objection raised pure points of law, and invoked Section 7 of the Civil Procedure Act as expounded in the IEBC vs Maina Kiai decision. Finding all elements of res judicata satisfied, the court declined to determine the application, struck out the entire suit and awarded costs to the Defendant.

Key legal issues

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01

Whether the Defendant's preliminary objection qualified as a pure point of law

Holding

It did, because res judicata and jurisdiction are legal issues based on uncontested prior court records

Reasoning

Applying Mukisa Biscuits and Oraro vs Mbaja, the court found the objection raised res judicata and lack of jurisdiction, which are pure points of law; the previous suits and rulings referenced by the parties were not contested, so the test for a valid preliminary objection was met.

p. 3
02

Whether the suit was res judicata

Holding

Yes; the same parties had litigated the same trust issue over Mombasa/Block XVI/875 before the Kadhi, who dismissed both suits in rulings dated 7th December 2021 and 22nd June 2023

Reasoning

The court found on the record that the Plaintiffs had previously filed Succession Cause No. 304 of 2021 and Kadhi's Misc. Application No. 411 of 2021 against the same Defendant, both dismissed on the basis that the Kadhi had no jurisdiction to declare a trust contrary to land registry entries. The proper remedy was appeal, not a fresh suit in the ELC.

p. 5

Legal principles established

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  • A preliminary objection must be founded on a pure point of law and cannot be raised where facts have to be ascertained or judicial discretion exercised
  • All elements of Section 7 of the Civil Procedure Act must be satisfied conjunctively for res judicata to be invoked
  • A party dissatisfied with a prior decision should appeal rather than file a fresh suit seeking similar orders

Court orders

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  1. 1.The suit dated 26th July 2023 is struck out with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2, 3, 5 & 9
  • Civil Procedure ActCap. 21 Laws of Kenya; Section 7
  • Land Registration Act 2012Sections 14, 24, 25, 26 & 79
  • Constitution of the Republic of KenyaArticles 40, 50, 60, 64
  • Fair Administrative Action ActSection 5

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Oraro vs Mbaja
    2005 eKLR
  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    (2017) eKLR
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • George Kamau Kimani & 4 Others vs County Government of Trans Nzoia & Another
    (2014) eKLR
Jurisdiction invoked
Articles 40, 50, 60, 64 of the Constitution of the Republic of Kenya and the Civil Procedure Act and Land Registration Act 2012 (as invoked by the applicants)

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, "Abdalla & another v Streeper (Environment & Land Case E011 of 2023) [2024] KEELC 135 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 26th July 2023; suit dated 26th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/135/eng@2024-01-25

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