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ELCAllowedNotice of Motion dated 18/03/2024· [2024] KEELC 6760 (KLR)

Yuya Farmers Cooperative Society v Muliro & 19 others (Environment & Land Case E006 of 2024) [2024] KEELC 6760 (KLR)

Environment and Land Court
3 October 2024
FNF. NYAGAKA
4,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit as res judicata, confirming that rebranding parties cannot revive already-decided disputes.

What this practically means

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Executive summary

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The Defendants, led by Mukasa Mwambu Muliro, son and letters ad litem holder of the estates of the late Henry Masinde Muliro and Mercia Muliro, moved the Environment and Land Court at Kitale by Notice of Motion dated 18/03/2024 seeking striking out of the Plaintiffs' suit as res judicata under Section 7 of the Civil Procedure Act. They relied on prior litigation over parcel LR No 11209: Kitale SPM Land Case No 12 of 2000, Kitale High Court Misc. Civil Application No 30 of 2000, Kitale ELC No 19 of 2013 (dismissed on 20/02/2014) and Eldoret Civil Appeal No 17 of 2015, which abated. The Plaintiffs did not file any replying affidavit on the court record, so the application proceeded effectively ex parte. The court held that uncontroverted affidavit evidence stands, but that it must still assess whether the facts merit relief. Examining the annextures, it found all elements of res judicata satisfied as against the 1st Defendant: same subject matter, same parties or parties litigating under the same title, a competent court, and a determination on merits whose appeal had abated, leaving the judgment standing. Joseph Muchoe's omission of himself as plaintiff and the renaming of the society, plus the addition of new defendants, did not create a new cause of action. The court struck out the suit as res judicata and awarded the Defendants costs of both the suit and the application.

Key legal issues

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01

Consequences of failure to file a replying affidavit

Holding

The application may proceed ex parte and the facts deponed to in the supporting affidavit are taken as uncontroverted

Reasoning

Under Order 51 Rule 14(4) of the Civil Procedure Rules, where a respondent fails to file the documents listed in sub-rule (1), the application may be heard ex parte. The court applied Nyakundi and Kitur: uncontroverted sworn averments stand. However, the court stressed it is not a mere conveyor belt and must still satisfy itself that the uncontroverted facts merit the orders sought.

p. 4
02

Whether the suit is res judicata

Holding

Yes; all elements of res judicata were satisfied as between the Plaintiff and the 1st Defendant

Reasoning

The same parcel LR No 11209 was litigated in Kitale SPM Land Case No 12 of 2000 and Kitale ELC No 19 of 2013, which was dismissed on 20/02/2014; the subsequent appeal abated, leaving the judgment standing. Joseph Muchoe, who had sued on behalf of the society, now appeared only as chairman; renaming the plaintiff and adding new defendants did not create a new cause of action. Matters are not tried by instalments.

p. 7

Legal principles established

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  • Failure to file a response to an application supported by affidavit means the facts deponed to remain uncontroverted, but the court must still examine whether the uncontroverted facts merit the orders sought
  • Abatement of an appeal leaves the underlying judgment standing and binding on the parties
  • Adding or removing parties or re-branding them does not defeat the doctrine of res judicata

Court orders

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  1. 1.The instant suit is struck out for being res judicata
  2. 2.Costs of the suit awarded to the Defendants
  3. 3.The Defendants shall also have the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 7, 27
  • Civil Procedure RulesOrder 51 Rules 1 and 14; Order 2 Rule 15(1)(a)
  • Societies Actnot specified
  • Court of Appeal RulesRule 99(2)

Cases cited (7)

  • Kenya Commercial Bank Limited v Muiri Coffee Estates Limited and another
    (2016) eKLR
  • Omondi v National Bank of Kenya Limited and another
    [2001] KLR
  • Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another
    [2016] eKLR
  • Phillip Tirop Kitur v Attorney General
    [2018] eKLR
  • Linus Nganga Kiongo & 3 others v Town Council of Kikuyu
    (2012) eKLR
  • Suleiman Said Shabhal v Independent Electoral & Boundaries Commission & 3 others
    [2014] eKLR
  • Mwangi v Mokaya
    Environment and Land Appeal No 13 of 2023 [2023] KEELC 18642 (KLR)
Jurisdiction invoked
Sections 3, 3A and 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Yuya Farmers Cooperative Society v Muliro & 19 others (Environment & Land Case E006 of 2024) [2024] KEELC 6760 (KLR)", Case Analysis (2024). Notice of Motion dated 18/03/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6760/eng@2024-10-03

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