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ELCStruck OutNot stated in the judgment· [2024] KEELC 4403 (KLR)

Plaintiffs v 2nd & 3rd Defendants (Plot Number 13 Kahawa West Phase II)

Environment and Land Court
23 May 2024
MMM.D. Mwangi
1,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land suit over Plot 13 Kahawa West was struck out because the court had already decided the same dispute in a previous case.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nairobi on a striking-out application dated 8th April 2024 by the 2nd Defendant, Crispus Raini Nyagah, seeking that the Plaintiffs' suit be struck out and dismissed with costs. The 2nd Defendant asserted he was the legitimate allottee of Plot Number 13 Kahawa West Phase II, allocated in 1992, evidenced by a Letter of Allotment, Beacon Certificate and payment receipt, and that the Plaintiffs held no documents of ownership and were trespassers. He argued the suit was res judicata, having been determined in ELC Case No. 808 of 2012 by judgment delivered on 8th February 2019, and was otherwise scandalous, frivolous and vexatious, and that the Verifying Affidavit was defective for want of authorization from co-Plaintiffs. The application was unopposed, the Plaintiffs having filed no response despite service. M.D. Mwangi J framed a single issue: whether the suit was res judicata. Relying on Section 7 of the Civil Procedure Act, Section 28 of the Environment and Land Court Act, and the authorities of IEBC v Maina Kiai and E.T v Attorney General, the court found the subject matter and parties identical to the former suit and held the Plaintiffs were attempting to re-litigate a concluded matter. The application was allowed as prayed, the suit struck out with costs to the 2nd and 3rd Defendants, and the 2nd Defendant awarded costs of the application.

Key legal issues

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01

Whether the Plaintiffs' suit is res judicata having regard to the judgment in ELC Case No. 808 of 2012 delivered on 8th February 2019

Holding

The suit is res judicata; the subject matter and parties are the same as in the former suit and the Plaintiffs are re-litigating a concluded matter. The suit is struck out.

Reasoning

Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act bar re-litigation of matters directly and substantially in issue and finally determined by a competent court between the same parties. From the pleadings and the annexed judgment in ELC 808 of 2012, the subject matter (Plot Number 13 Kahawa West Phase II) and parties are identical. Applying the IEBC v Maina Kiai elements and the E.T v Attorney General test, the Plaintiffs seek to re-open issues already determined.

p. 3

Legal principles established

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  • For res judicata to be upheld, five elements must be satisfied conjunctively: same issue directly and substantially in issue, same parties or parties under whom they claim, litigating under the same title, issue heard and finally determined, and the former court competent to try the subsequent suit.
  • Courts must guard against litigants evading res judicata by re-framing a resolved cause of action in a new suit.

Court orders

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  1. 1.The 2nd Defendant's application dated 8th April, 2024 is allowed as prayed
  2. 2.The Plaintiffs' suit is struck out with costs to the 2nd and 3rd Defendants
  3. 3.The 2nd Defendant shall have costs of the application
Jurisdiction invoked
Environment and Land Court Act, Section 28; Civil Procedure Act, Section 7

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, "Plaintiffs v 2nd & 3rd Defendants (Plot Number 13 Kahawa West Phase II)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4403/eng@2024-05-23

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