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ELCStruck OutELC Case at Murang'a (suit filed 1st October 2018; Notice of Motion dated 17th April 2023)· [2024] KEELC 5384 (KLR)

Ndambo (Suing for and on Behalf of the Estate of Ndambo Ngungu – Deceased) v Gitau (Sued for and on Behalf of the Estate of Bernard Gitau Ngungu – Deceased); Gitau & 2 others (Interested Parties) (Environment & Land Case 77 of 2018) [2024] KEELC 5384 (KLR)

Environment and Land Court
11 July 2024
4,049 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Murang'a court struck out a land ownership suit because the same dispute was already decided in 1997 — you cannot relitigate a settled land case in Kenya.

What this practically means

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Executive summary

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The plaintiff, Bernard Gitau Ndambo, sued the defendant, John Kibandi Gitau, in 2018 seeking a declaration that land parcel Loc 17/Iganjo/1841 is his property and an order directing the Land Registrar, Murang'a to transfer it to him. A consent order allowing the claim had earlier been set aside in January 2023 for want of instructions, and interested parties were joined. The defendant then filed a notice of preliminary objection and a notice of motion dated 17th April 2023, contending that the suit was res judicata, ownership of the same parcel having been determined in Murang'a SPMCC No. 534 of 1995 between the parties' late fathers, the judgment of 17th June 1997 having never been set aside despite an abandoned appeal. The plaintiff opposed, arguing the 1997 decree had lapsed under Section 4(4) of the Limitation of Actions Act after 27 years of non-execution, and the interested parties argued lack of locus standi and non-disclosure. The court held that a res judicata plea cannot be raised by preliminary objection since it requires ascertainment of facts, and determined the notice of motion instead. It found the plaintiff had authority to sue, that the 1997 judgment stood (no evidence of the appeal's outcome having been produced), that limitation did not apply since the defendant was not seeking enforcement, and that the suit was res judicata. The court struck out and/or dismissed the suit, allowed the motion entirely, and awarded costs to the defendant.

Key legal issues

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01

Whether the res judicata objection could be raised by way of preliminary objection

Holding

No. A res judicata plea requires ascertainment of facts and should be raised by Notice of Motion; the court declined to make findings on the preliminary objection and instead determined the Notice of Motion.

Reasoning

Relying on Mukisa Biscuits, Oraro v Mbaja, Khaemba and Kimani, the court held that a preliminary objection must be a pure point of law on admitted facts. Since the res judicata plea required probing of the proceedings and judgment in the former suit, it was improperly framed as a preliminary objection, and the identical issue was anyway properly before the court in the Notice of Motion.

p. 6
02

Whether the plaintiff had locus standi to sue without letters of administration in respect of the estate of Esther Wanjiku Ndambo

Holding

The plaintiff had the requisite authority; the court perused a grant of letters of administration intestate issued to him in respect of the estate of Ndambo Ngungu and held he could file the suit on behalf of that estate.

Reasoning

The Interested Parties argued the plaintiff lacked letters of administration in the estate of Esther Wanjiku Ndambo, his mother and former administrator of his father's estate. The court examined a grant of letters of administration intestate issued to the plaintiff in respect of Bernard Gitau alias Bernard Gitau Ngungu and was satisfied he had authority to litigate on behalf of the deceased's estate.

p. 7
03

Whether the suit was barred by limitation under Section 4(4) of the Limitation of Actions Act

Holding

No. The limitation argument failed because the application before the court was not for enforcement of the 1997 judgment; the defendant had not sought to enforce it, whereas the plaintiff had filed a fresh suit over an issue already conclusively determined.

Reasoning

The plaintiff argued the 1997 decree had lapsed under Section 4(4) of the Limitation of Actions Act, the defendant having slept on it for 27 years. The court held the limitation provision bars enforcement of judgments, but the defendant was not seeking enforcement; the plaintiff was the party who instituted a new suit over property whose ownership had been conclusively settled in 1995 litigation.

p. 8
04

Whether the suit is res judicata

Holding

Yes. The ownership of Loc 17/Iganjo/1841 was determined in Murang'a SPMCC No. 534 of 1995 between the parties' fathers, the judgment was never set aside, and the present parties are successors in title litigating under the same title.

Reasoning

The court applied Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai elements of res judicata. The same subject matter (ownership of the suit land) was directly and substantially in issue and finally determined by a competent court in 1997; the present parties litigate under the same title as successors of the original litigants. The abandoned appeal did not disturb the judgment. The suit was therefore struck out and/or dismissed.

p. 8

Legal principles established

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  • A preliminary objection premised on res judicata is improper where facts must be ascertained; res judicata should be raised by Notice of Motion with pleadings annexed
  • A suit over the same property and issue already determined by a competent court is barred by res judicata notwithstanding that the decree in the former suit has not been executed or enforced
  • Where no judgment is presented showing an appeal's outcome, the underlying judgment of the former court stands

Court orders

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  1. 1.The Notice of Preliminary Objection dated 13th February 2023 was not determined on its merits; the court proceeded to determine the Notice of Motion dated 17th April 2023
  2. 2.The Notice of Motion Application dated 17th April 2023 is allowed entirely in terms of prayers No. 1, 2 and 3
  3. 3.Prayer No. 1 allowed: this court has no jurisdiction to hear the suit as it is res judicata
  4. 4.Prayer No. 2 allowed: the suit is struck out and/or dismissed for being res judicata
  5. 5.The Plaintiff/Respondent is condemned to pay costs of the suit and the Application

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 7
  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3A and 8
  • Civil Procedure RulesOrder 51 Rule 1
  • Limitation of Actions ActSection 4(4)

Cases cited (10)

  • Mukisa Biscuits Manufacturing Co. Ltd –vs– West End Distributors Ltd
    (1969) EA 696
  • Oraro –vs– Mbaja
    (2005) 1 KLR 141
  • Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • George Kamau Kimani & 4 Others vs County Government of Trans Nzoia & Another
    (2014) eKLR
  • Henderson vs Henderson
    (1843) 67 ER 313
  • IEBC v Maina Kiai & 5 others
    Nairobi CA No.105 of 2017 (2017) eKLR
  • Gitau v Gitau & 2 Others
    ELC Case No. 15 of 2021 [2023] KEELC 16029 (KLR)
  • Republic v Rosemary Wairimu Munene (Ex parte Applicant) v Ihururu Dairy Farmers Cooperative Society Ltd
    JR Appl. No. 6 of 2004
  • Topisis & 4 others
    ELC Appeal E002 of 2022 [2023] KEELC 21129 (KLR)
  • M'Ikiara M'Rinkanya & Another v Gilbert Kabeere M'mbijiwe
    Civil Appeal No. 124 of 2003 [2007] eKLR
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court (implied from the court's constitution); the ruling turns on Section 7 of the Civil Procedure Act, Cap 21

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, "Ndambo (Suing for and on Behalf of the Estate of Ndambo Ngungu – Deceased) v Gitau (Sued for and on Behalf of the Estate of Bernard Gitau Ngungu – Deceased); Gitau & 2 others (Interested Parties) (Environment & Land Case 77 of 2018) [2024] KEELC 5384 (KLR)", Case Analysis (2024). ELC Case at Murang'a (suit filed 1st October 2018; Notice of Motion dated 17th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5384/eng@2024-07-11

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