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ELCStruck OutNot stated in judgment (interlocutory application dated 7th March 2024)· [2024] KEELC 4435 (KLR)

Benjamin & 7 others v Nganga & 9 others (Environment & Land Case E017 of 2024) [2024] KEELC 4435 (KLR)

Environment and Land Court
30 May 2024
2,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court struck out an entire land dispute as res judicata because shareholders had already lost the same issue in a prior case.

What this practically means

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Executive summary

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The plaintiffs, shareholders of Haraka Farmers Ltd, sought a temporary injunction restraining the defendants from conducting survey activities on eight parcels of land in Kamara/Mau Summit Block 6, alleging the survey was illegal and contravened Section 19 of the Land Registration Act. The defendants opposed, contending the survey was conducted pursuant to a judgment of the same court in Nakuru ELC No. 161 of 2013 (Charles Ngaruiya Ngotho & Others v Haraka Farmers Co Ltd), in which the court on 12th July 2022 declared the company's re-survey decision null and void, cancelled the RIM and titles issued on it, and ordered preparation of a fresh RIM. The court held the present suit was res judicata: the issue of survey had been determined in the earlier representative suit, which bound all shareholders including the plaintiffs. The court further found the plaintiffs guilty of non-disclosure of material facts, having concealed the prior suit and the cancellation of their title deeds, and held they had failed to establish a prima facie case with a likelihood of success since the titles relied upon were cancelled. Applying Section 7 of the Civil Procedure Act and authorities including Siri Ram Kaura v Morgan, Uhuru Highway Development, Giella v Cassman Brown and Nguruman Limited, the court struck out the entire suit with costs on 30th May 2024.

Key legal issues

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01

Res judicata

Holding

The whole suit is res judicata as the issue of survey of the suit land was determined in Nakuru ELC No. 161 of 2013, a representative suit binding all shareholders

Reasoning

The court found that the previous judgment of 12th July 2022 declared the re-survey decision null and void, cancelled the RIM and titles, and ordered a fresh RIM. The current survey was undertaken pursuant to that decree. The plaintiffs, as shareholders of Haraka Farmers Ltd, are bound by the representative suit and cannot relitigate the same issue with different parties conjured up.

p. 5
02

Non-disclosure of material facts

Holding

The plaintiffs concealed the prior suit and the cancellation of their title deeds, disentitling them from an injunction

Reasoning

The court held that even if the suit had merit, the plaintiffs' failure to disclose the existence of the prior suit and the cancelled titles barred the exercise of the court's discretion in their favour. The title deeds relied upon had been cancelled by the same court in the 2013 suit.

p. 3
03

Prima facie case for temporary injunction

Holding

No prima facie case was established since the titles relied upon were cancelled

Reasoning

Applying Giella v Cassman Brown and Nguruman Limited, the applicant must first establish a prima facie case with a likelihood of success. Since the title deeds underpinning the claim had been cancelled by the court, no apparent legal right was demonstrated, and the application necessarily failed.

p. 5

Legal principles established

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  • A suit whose issues were directly and substantially determined in a former suit between the same parties or parties litigating under the same title is res judicata under Section 7 of the Civil Procedure Act
  • A judgment in a representative suit binds all shareholders on whose behalf it was brought
  • Non-disclosure of material facts disentitles an applicant from discretionary injunctive relief

Court orders

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  1. 1.The whole suit is res judicata and is struck out with costs

Authorities

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Legislation

  • Land Registration ActSection 19
  • Civil Procedure Act Cap 21Section 7

Cases cited (7)

  • Charles Ngaruiya Ngotho & Others v Haraka Farmers Co Ltd
    Nakuru ELC No. 161 of 2013
  • Njangu v Wambugu and another
    Nairobi HCCC No.2340 of 1991 (unreported)
  • Siri Ram Kaura v M.J.E. Morgan
    CA 71/1960 (1961) EA 462
  • Uhuru Highway Development Ltd v Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni
    null
  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    (2003) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in Kamara/Mau Summit Block 6

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, "Benjamin & 7 others v Nganga & 9 others (Environment & Land Case E017 of 2024) [2024] KEELC 4435 (KLR)", Case Analysis (2024). Not stated in judgment (interlocutory application dated 7th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4435/eng@2024-05-30

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