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ELCStruck OutMachakos Miscellaneous Cause (Originating Summons dated 21st July, 2020)· [2024] KEELC 4305 (KLR)

Nguku v Maundu & 4 others; Land Registrar, Machakos (Interested Party) (Enviromental and Land Originating Summons 57 of 2020) [2024] KEELC 4305 (KLR)

Environment and Land Court
27 May 2024
COChristine Ochieng
1,620 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a land boundary suit because the same dispute had already been decided between the same parties in three earlier cases.

What this practically means

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Executive summary

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The Respondents filed a Notice of Preliminary Objection dated 15th September, 2023 arguing that the Applicant's Originating Summons dated 21st July, 2020 was res judicata, having been preceded by Machakos CMCC No. 20 of 2006, Machakos Misc. No. 243 of 2006 and Machakos Misc. No. 9 of 2018, all concerning the same boundary dispute over parcel Kalama/Katanga/629 and all determined against the Applicant. The Applicant responded that Justice Angote had on 21st May, 2019 ordered the Machakos Land Registrar and Surveyor to fix the boundary pursuant to the judgment of 5th April, 2006, and that the Registry Index Map needed amendment to reflect the boundary established by the Akitondo Clan in 1970. The court framed a single issue: whether the preliminary objection was merited. Applying Section 7 of the Civil Procedure Act and the tests in Uhuru Highway Development Ltd and John Florence Maritime Services (Supreme Court), the court found that the fulcrum of the dispute in all three prior cases was the same boundary issue, the parties litigated under the same title (Kalama/Katanga/629), and competent courts had heard and determined the matters. The instant suit raised identical issues and was therefore res judicata. The court allowed the preliminary objection, struck out the Originating Summons, and awarded costs to the Respondents. Judgment delivered virtually at Machakos on 27th May, 2024 by Christine Ochieng, Judge, the Applicant appearing in person and Kaloki for the Respondents.

Key legal issues

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01

Whether the instant Originating Summons is res judicata having regard to Machakos CMCC No. 20 of 2006, Machakos Misc. No. 243 of 2006 and Machakos Misc. No. 9 of 2018

Holding

The suit is res judicata as the same boundary dispute over Kalama/Katanga/629 between the same parties litigating under the same title was heard and determined in the three prior suits

Reasoning

The court traced the litigation history: in Misc. Application No. 20 of 2006 the court adopted the Tribunal's decision that boundaries remain as they were; the review in Misc. Cause No. 243 of 2006 was dismissed; and Misc. No. 9 of 2018 seeking restoration of the boundary was dismissed as res judicata. Applying the five-part test from John Florence Maritime Services and Section 7 of the Civil Procedure Act, the matter, parties, title, jurisdiction and finality were all satisfied.

p. 4
02

Whether a preliminary objection on the ground of res judicata can sustain the striking out of a suit

Holding

Yes; the Notice of Preliminary Objection was upheld and the suit struck out

Reasoning

The court found the objection merited on the undisputed record of prior determinations of the same boundary issue, since res judicata is a pure point of law that can be raised by preliminary objection without delve into facts.

p. 4

Legal principles established

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  • For res judicata to apply there must be a previous suit in which the matter was in issue, the same parties or parties litigating under the same title, and a competent court must have heard and finally decided the issue
  • Section 7 of the Civil Procedure Act bars a court from trying any suit or issue directly and substantially in issue in a former suit between the same parties that was heard and finally decided by a competent court

Court orders

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  1. 1.The Notice of Preliminary Objection dated 15th September, 2023 is allowed
  2. 2.The Originating Summons dated 21st July, 2020 is struck out
  3. 3.Costs of the suit awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 7 (including Explanations 1-6)

Cases cited (5)

  • Njangu vs Wambugu & Another
    Nairobi HCCC No. 2340 of 1991 (unreported)
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others
    (2015) eKLR; (Petition 17 of 2015) [2021] KESC 39 (KLR)
  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    (2010) eKLR
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (not expressly stated in the judgment); objection raised under Section 7 of the Civil Procedure Act

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, "Nguku v Maundu & 4 others; Land Registrar, Machakos (Interested Party) (Enviromental and Land Originating Summons 57 of 2020) [2024] KEELC 4305 (KLR)", Case Analysis (2024). Machakos Miscellaneous Cause (Originating Summons dated 21st July, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4305/eng@2024-05-27

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