Ndurere & another (Suing as administrators and personal representatives of the Estate of the Late Ndurere Gathii – Deceased) & another v Gethi & another (Environment & Land Case 16 of 2023) [2024] KEELC 1043 (KLR)
The bottom line
#A Kenyan land court struck out a fresh ownership suit because the same families had already litigated the same property dispute in an earlier case that was never overturned.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is res judicata as it re-litigates a dispute already heard and determined on merit in Nyahururu ELC No 50 of 2018 between the same parties over the same subject matter.
The parties in both suits are the same and litigating in the same capacity. The subject matter and matters directly and substantially in issue are identical. The previous judgment dated 12.11.2019 was never set aside, varied or overturned; attempts to appeal out of time and obtain stay failed. Applying Kamunye v Pioneer General Assurance Society, the court held the Plaintiffs were trying to bring before the court, in a new form, a transaction already adjudicated upon by a competent court. Allegations of forged documents could have been proved in the previous suit.
Abuse of court process
Seeking to revive a matter already decided is a gross abuse of the court process and a wastage of judicial resources.
Having found the suit res judicata, the court held that re-presenting the same dispute among the same parties over the same subject matter would mean there would be no end to litigation. The court has neither the time nor the resources to repeat itself over matters already adjudicated.
Interim injunction
No interim orders can issue in proceedings that are res judicata and an abuse of process.
The court found the suit res judicata and an abuse of the court process; it followed logically that the Plaintiffs were not entitled to interim orders. The court also noted there was no allegation of imminent eviction or irreparable loss absent an injunction.
Legal principles established
#- A litigant who has lost a suit cannot resurrect the same cause of action by cosmetic changes to the plaint; the remedy is appeal.
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act.
Court orders
#- 1.The Defendants' preliminary objection dated 01.12.2023 is hereby upheld
- 2.The Plaintiffs' suit is hereby declared res judicata and otherwise an abuse of the court process
- 3.The Plaintiffs' suit and notice of motion dated 30.08.2023 are hereby struck out
- 4.The Defendants are awarded costs of the suit and application dated 30.08.2023
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution / Environment and Land Court Act (not expressly stated in the judgment); the ruling arises from the court's inherent powers under the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndurere & another (Suing as administrators and personal representatives of the Estate of the Late Ndurere Gathii – Deceased) & another v Gethi & another (Environment & Land Case 16 of 2023) [2024] KEELC 1043 (KLR)", Case Analysis (2024). Nyahururu ELC (not stated in judgment; suit filed by plaint dated 30.08.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1043/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.