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ELCStruck Out· [2024] KEELC 3402 (KLR)

Langat (Suing on Behalf of the Estate of the Late Sophia Chelimo Kerio) v Cheruiyot & 2 others (Environment & Land Case E011 of 2022) [2024] KEELC 3402 (KLR)

Environment and Land Court
25 April 2024
MOM.C. Oundo
3,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot revive a dismissed land case by filing it again—your only options are appeal or review of the original dismissal.

What this practically means

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Executive summary

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The Plaintiff, a grandchild of the late Sophie Chelimo Kerio and holder of a grant issued on 23rd May 2022, sued by an amended Plaint dated 3rd July 2023 seeking a declaration that land parcel Kericho/Kapsoit/1603 belongs to the deceased, the eviction of the Defendants, a permanent injunction against trespass, general damages, mesne profits and costs. Before hearing, the Defendants raised a Notice of Preliminary Objection seeking that the suit be struck out as res judicata, further contending that it offended Section 7 of the Limitation of Actions Act and that the court lacked jurisdiction. The Plaintiff opposed, arguing he was not a party to Kericho ELC Case No. 87 of 2016 - a suit by a beneficiary that was dismissed for want of prosecution - that he only acquired locus upon the grant, and that the former suit was never heard on merit. The court framed three issues: whether a dismissal constitutes a determination of a suit, whether the suit was res judicata, and whether the objection was sustainable. Applying the Mukisa Biscuit test and the binding Court of Appeal decisions in Njue Ngai and Co-operative Bank of Kenya v Moka, the court held that a dismissal for want of prosecution is a judgment; the remedy is review or appeal, and a fresh suit on the same issues and subject matter offends res judicata. The objection was upheld and the Plaintiff's suit dismissed with costs.

Key legal issues

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01

Whether a suit dismissed for want of prosecution is a suit 'heard and determined' for purposes of res judicata

Holding

Yes - a dismissal is a judgment, and a fresh suit on the same issues between the same parties is res judicata

Reasoning

Relying on Njue Ngai v Ephantus Njiru Ngai and Co-operative Bank of Kenya v Cosmas Mrombo Moka, the court held that a dismissal for want of prosecution amounts to a judgment. The affected party's remedy is review or appeal, not a fresh suit. Adding a party or 'cosmetic fact lift' cannot evade the doctrine. The former suit ELC 87 of 2016 was dismissed by a competent court between effectively the same parties over the same land.

p. 6
02

Whether the Preliminary Objection was a proper pure point of law

Holding

Yes - res judicata/limitation objections are pure points of law capable of disposing of the suit

Reasoning

The court applied the classic Mukisa Biscuit formulation: a preliminary objection is a point of law argued on the assumption that the facts pleaded by the other side are correct, and if argued as a preliminary point may dispose of the suit.

p. 4

Legal principles established

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  • A dismissal of a suit for want of prosecution is a judgment; the affected party may only seek review or appeal and cannot resuscitate the claim by a fresh suit, which would offend res judicata

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The Plaintiff's suit vide his amended Plaint of 3rd July 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 27(1)
  • Limitation of Actions ActSection 7

Cases cited (17)

  • Benard Mugo Ndegwa v James Nderitu Githae and 2 others
    [2010] eKLR
  • James Njuguna Chui v John Kimani
    [2017] eKLR
  • Serem v Serem
    (Environment and Land Case Civil Suit E007 of 2021) [2023] KEELC 21693 (KLR)
  • Mukuru Munge v Florence Shingi & 2 others
    [2016] eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Company Limited
    (1969) E.A. 696
  • Rebecca Chumo v Christina Cheptoo Chumo
    [2021] eKLR
  • Bosire Ongero v Royal Media Services
    [2015] eKLR
  • Koros (Suing as Personal Representative of the Estate of Anthony Kipkoros Towett) v The County Government of Kericho
    (Environment and Land Case 50 of 2016) [2022] eKLR
  • The Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Phoenix of E.A. Assurance Company Limited v S.M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Samuel Kamau Macharia v KCB & 2 Others
    [2011] eKLR
  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-Operative Society Ltd
  • Njue Ngai v Ephantus Njiru Ngai & another
    [2016] eKLR
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • Co-operative Bank of Kenya vs Cosmas Mrombo Moka and another
    (2019) eKLR
  • Omondi Vs National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu vs Wambugu and another
    Nairobi HCCC No.2340 of 1991 (unreported)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - court not expressly stated in judgment; preliminary objection decided under civil procedure law

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, "Langat (Suing on Behalf of the Estate of the Late Sophia Chelimo Kerio) v Cheruiyot & 2 others (Environment & Land Case E011 of 2022) [2024] KEELC 3402 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3402/eng@2024-04-25

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