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ELCPartially AllowedELC Appeal (Thika) – Appeal against Ruling of 15/9/2022 in ELC 164 of 2021, Ruiru· [2024] KEELC 3824 (KLR)

Karanja (Suing as the Legal Administrator of the Estate of Frider Wanjiru Karanja) v Kamau & 2 others (Environment and Land Appeal E081 of 2022) [2024] KEELC 3824 (KLR)

Environment and Land Court
9 May 2024
4,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A land dispute can continue after an earlier case was withdrawn with court permission, because res judicata only applies to finally decided cases.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Thika against a Ruling of the trial Magistrate delivered on 15/9/2022, which upheld a Preliminary Objection finding that the appellant's suit, ELC 164 of 2021 (Ruiru), was an abuse of court process for failure to disclose a previously withdrawn Thika suit (Misc No. 131 of 2018) involving the same parties and land, parcel Ruiru/Ruiru East Block 2/2478. The dispute concerns allegations of fraud in the transfer of the suit land, said to involve impersonation of the appellant's deceased mother before the Land Control Board. The appellant argued, relying on Mukisa Biscuit, that the objection was not a pure point of law, and that res judicata did not apply because the earlier suit was withdrawn with leave before final determination. The respondents maintained the suit was an abuse of process and res judicata. G Kemei, J, framed three issues: whether submissions were on record, whether the objection was a pure point of law, and costs. The Court found the appellant's submissions were not on the trial record; that the objection was defective in targeting a non-existent application dated 10/4/2020 and required factual inquiry, ousting it as a pure point of law; and that a suit withdrawn with leave was not finally determined, so res judicata did not apply, nor was there duplicity amounting to abuse of process. Grounds 1, 2, 3 and 5 of the appeal were struck out as never canvassed. The appeal was partially upheld: the Preliminary Objection was dismissed, the ruling of 15/9/2022 was set aside in its entirety, and costs were made costs in the cause.

Key legal issues

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01

Whether the Appellant's submissions were on record before the trial Court

Holding

The trial record did not contain the Appellant's written submissions; the trial Court was right to treat the objection as apparently undefended, though submissions filed out of time by the 2nd Respondent were on record

Reasoning

The Court perused the trial record and found the 2nd Respondent's submissions filed 5/9/22 present but none from the Appellant. It noted the Appellant did not explain how submissions in the record of appeal found their way into the trial record. The Magistrate's observation that the Appellant's submissions were not on record was therefore factually supported.

p. 7
02

Whether the Preliminary Objection was a pure point of law

Holding

It was not; it required determination of contested facts and thus fell outside the Mukisa Biscuit dictum

Reasoning

The objection asserted existence of a prior similar suit at Thika, abuse of process and unenforceability of orders. Each ground required examination of facts, contentious and otherwise, contrary to the requirement that a preliminary objection raise a pure point of law on assumed facts. The objection was accordingly ousted as not a pure point of law.

p. 7
03

Whether ELC 164 of 2021 (Ruiru) was res judicata following withdrawal of Misc 131 of 2018 (Thika)

Holding

No; withdrawal with leave before final determination means there was no judgment or final decision, so res judicata under Section 7 of the Civil Procedure Act does not apply

Reasoning

Section 7 bars trial of a matter heard and finally decided in a former suit. Misc 131 of 2018 was withdrawn with the Court's leave, parties being directed to file taxation as to costs, without objection on merits. There being no judgment or final determination, the doctrine is inapplicable to the subsequent suit.

p. 8
04

Whether filing the second suit amounted to abuse of the court process

Holding

No duplicity arose since the earlier suit had been withdrawn; the Ephraim Miano abuse authority was distinguishable

Reasoning

The Respondents argued the withdrawal was premeditated to subject them to fresh litigation. The Court held that the Thika case having been withdrawn, there was no duplicity of suit, and distinguished Ephraim Miano Thamaini where the abuse finding rested on sub judice, absent here.

p. 9

Legal principles established

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  • A suit withdrawn with the leave of the Court before final judgment does not found a plea of res judicata against a subsequent suit
  • A preliminary objection that requires the Court to ascertain or examine facts ceases to be a pure point of law
  • Parties are bound by their pleadings; a preliminary objection directed at a non-existent pleading is defective

Court orders

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  1. 1.Grounds Nos. 1, 2, 3 and 5 of the Memorandum of Appeal struck out as never canvassed in the Ruling of the learned Magistrate
  2. 2.The Preliminary Objection is dismissed
  3. 3.The orders of the learned Magistrate issued on the 15/9/2022 be and are hereby set aside in their entirety
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7 (Res Judicata)
  • Civil Procedure RulesOrder 25 rules 1 and 2 (Withdrawal and discontinuance)
  • Law of Contract ActSection 3(1)(2)

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • John Florence Maritime Services Limited & Anor v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2021] eKLR
  • Kimunya v Mohammed & Anor
    [2022] KLR
  • Satya Bhama Gandhi v Director of Public Prosecution & 3 Others
    [2018] eKLR
  • Richard Muthusi v Patrick Gituma Ngomo & Anor
    [2017] eKLR
  • Kiambu County Tenants Welfare Association v Attorney General & Anor
    [2017] eKLR
  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 Others
    [2022] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
On appeal from
Chief Magistrate's Court (Environment and Land) at Thika
ELC 164 of 2021 (formerly Misc No. 131 of 2018, Thika)
Jurisdiction invoked
First appellate jurisdiction over the trial Magistrate's Court ruling (Environment and Land Court Act); appeal against the Ruling delivered online on 15/9/2022

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, "Karanja (Suing as the Legal Administrator of the Estate of Frider Wanjiru Karanja) v Kamau & 2 others (Environment and Land Appeal E081 of 2022) [2024] KEELC 3824 (KLR)", Case Analysis (2024). ELC Appeal (Thika) – Appeal against Ruling of 15/9/2022 in ELC 164 of 2021, Ruiru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3824/eng@2024-05-09

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