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ELCDismissedMeru ELC Case (plaint dated 6.2.2023) - number not stated in judgment· [2024] KEELC 982 (KLR)

MISCHECK MUTHAMIA M'ITONGA v CEASER IKUNDA STEPHEN & 3 others

Environment and Land Court
21 February 2024
CNCK Nzili
1,551 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Meru landowner lost his second lawsuit because he should have appealed the first court decision instead of filing a fresh case.

What this practically means

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Executive summary

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The 1st defendant raised a preliminary objection dated 2.8.2023 arguing that this suit, filed by plaint dated 6.2.2023, offended the doctrines of res judicata and sub judice because it was filed during the pendency of, and after the determination of, Meru ELC OS No. 46 of 2018. In the former suit the 1st defendant had claimed half an acre of L.R No. Abogeta/Lower Kathangari/1691 by adverse possession, prescriptive rights, an easement or public right of way over an access road, and a permanent injunction; the plaintiff herein, as defendant there, admitted the sale of 0.50 acres of L.R No. 1232 but opposed the road as illegal, alleging fraud and collusion with the land surveyor, yet failed to tender evidence. That suit was determined on 19.7.2023 in the 1st defendant's favour. In the present suit the plaintiff alleged fraudulent subdivision using a forged mutation form and sought cancellation of titles and reversion of the land, naming the 2nd–4th defendants (survey and land officials). The court applied the settled elements of res judicata and sub judice, holding that the same parties and subject matter had been litigated to finality; that adding new parties does not alter the cause of action; and that the plaintiff, aware of the fraud allegations since 2015, could not litigate in installments but should have appealed or counterclaimed. The suit was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether the suit is res judicata and sub judice

Holding

Yes; the suit was filed during the pendency of Meru ELC OS No. 46 of 2018 between the same parties over the same subject matter, which was determined to finality

Reasoning

The court set out the five elements of res judicata and sub judice: same subject matter, same parties or those claiming under them, same title, a competent court, and a final determination. The former suit, decided on 19.7.2023, declared the 1st defendant entitled to L.R No. 1691 and issued a permanent injunction over the access road. The plaintiff's claim of fraud, forgery and collusion in the subdivision was already within his knowledge since 2015 and was raised as a defense in the former suit, where he failed to tender evidence. Adding the 2nd–4th defendants does not change the cause of action.

p. 3

Legal principles established

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  • A party cannot evade res judicata by adding new parties or framing a new cause of action to seek the same remedy; litigation in installments is an abuse of court process

Court orders

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  1. 1.The suit is dismissed for being res judicata and res sub-judice
  2. 2.Costs of the suit awarded to the 1st defendant

Authorities

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Cases cited (8)

  • Maina Kiai & 2 others vs IEBC & 2 others
    (2017) eKLR
  • William Koross vs Hezekiah Kiptoo Komen & others
    (2015) eKLR
  • Republic vs. Paul Kihara Kariuki Attorney General and others exparte Law Society Kenya
    (2020) eKLR
  • Kenya National Commission of Human Rights vs Attorney General & Independent Electoral & Boundary Commission & 16 others (I.Ps)
    (2020) eKLR
  • Gurbachan Singh Kalsi vs Yowani Ekori
    C.A No. 62 of 1958
  • Apondi vs Canvald Metal Packaging
    (2005) 1 EA 12
  • Siri Ram Kaura vs MJE Morgan
    (1961) E.A 482
  • E.T. vs. Attorney General & another
    (2012) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; not stated in the judgment

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, "MISCHECK MUTHAMIA M'ITONGA v CEASER IKUNDA STEPHEN & 3 others", Case Analysis (2024). Meru ELC Case (plaint dated 6.2.2023) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/982/eng@2024-02-21

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