Ndung'u (Suing as the administrator ad litem of the Estate of John Ndungu Mbugua) v Kinde Properties Limited (Environment & Land Case 357 of 2019) [2024] KEELC 5303 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land suit because the same family had already litigated the same property dispute — and lost — twice before.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / abuse of process by relitigating ownership of the suit property
The cause of action in the Amended Originating Summons had already been heard and determined on the merits in ELC 1288 of 2007 (O.S) and the consolidated 1985/1986 suits between parties under whom the parties claim; the suit was therefore barred by section 7 of the Civil Procedure Act and struck out.
The court found that the same subject matter (LR Dagoretti/Riruta/770) had been litigated in HCCC No. 3480 of 1985 consolidated with HCCC No. 364 of 1986, decided by Aluoch J on 28th June 1990, and again in ELC 1288 of 2007 (O.S), dismissed by Nyamweya J on 24th March 2015. The present Plaintiff is son of the plaintiff in those suits; the Defendant claims under the estate of Muchohi Gikonyo, the successful party. The Respondent did not deny the identity of subject matter. Litigation must have an end; res judicata applies.
Whether an Order 2 rule 15(1)(a) application may be supported by evidence
Applications under Order 2 rule 15(1)(a) require no evidence; the Applicant here pleaded no evidence other than disclosing the existence and outcome of previous determinations, and the application was in any event also premised on subrules (b), (c) and (d).
The Respondent argued that combining subrules (1)(a), (b), (c) and (d) was defective because subrule (1)(a) admits no evidence. The court accepted that no evidence is required under subrule (1)(a) but held the Applicant had not pleaded evidence, only disclosing previous cases between the same parties over the same subject matter, and that the invocation of subrules (b), (c) and (d) defeated the objection on form.
Whether the Plaintiff had a cause of action against the Defendant absent the seller as a party
The court found merit in the Applicant's contention that, the seller (Leah Wanja Muchohi) not being a party, there was no legal nexus between the Plaintiff and the Defendant; the Plaintiff showed no intention to amend to join the seller.
The Defendant purchased the suit property from Leah Wanja Muchohi by an agreement dated 28th February 2019 and is the registered proprietor. The Plaintiff sued the Defendant without joining the seller. The Respondent did not indicate willingness to amend to include the seller, which the court inferred was because of awareness of the former suits.
Legal principles established
#- Section 7 of the Civil Procedure Act bars the trial of a suit in which the matter directly and substantially in issue was directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title, and was heard and finally decided.
- The fact that striking out is a draconian remedy to be used sparingly does not permit a party to relitigate matters that have already been determined.
Court orders
#- 1.The Plaintiff's Amended Originating Summons as amended on 23rd November 2021 is struck out from the court record
- 2.The Plaintiff's suit against the Defendant is dismissed
- 3.The Defendant's Counterclaim dated 1st December 2022 shall be set down for hearing on a mutual date to be given at the time of delivery of the ruling
- 4.Costs of the application awarded to the Defendant/Applicant
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 50 rule 1; Order 2 rule 15(1)(a)-(d); Order 7 rule 13 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung'u (Suing as the administrator ad litem of the Estate of John Ndungu Mbugua) v Kinde Properties Limited (Environment & Land Case 357 of 2019) [2024] KEELC 5303 (KLR)", Case Analysis (2024). Not stated in the judgment (relates to Amended Originating Summons dated 23rd November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5303/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.