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ELCDismissedNot stated in the extract (Kajiado ELC)· [2024] KEELC 6810 (KLR)

Keriempere & 2 others v Gitau (Environment & Land Case E009 of 2024) [2024] KEELC 6810 (KLR)

Environment and Land Court
9 October 2024
MGM.N. Gicheru
1,024 words in judgment
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The bottom line

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The court blocked a fresh land suit as res judicata, ruling that ex parte judgments must be challenged in the original case, not new litigation.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) determines a notice of motion dated 13/2/2024 in which the plaintiffs sought a temporary injunction restraining the defendant from executing the judgment, decree and warrants of eviction in Kajiado ELC No. 63 of 2020, under which the 2nd and 3rd plaintiffs were evicted and their structures demolished on 24/1/2024. The plaintiffs claimed to be beneficial owners of LR Loitoktok/Kimana-Tikondo/6238, having purchased it from the 1st plaintiff in 2009, and alleged the defendant obtained the earlier judgment ex parte through non-disclosure and without service. The defendant, claiming to be the registered owner since a 2017 purchase, opposed the motion and raised a preliminary objection that the suit was incompetent, res judicata under Section 7 of the Civil Procedure Act, and an abuse of process. The court framed two issues: whether the suit was res judicata, and whether the proper course was a fresh suit or proceeding under the earlier suit. It held the suit res judicata, the parties and subject matter being identical to the earlier suit, and held the proper remedy for the ex parte judgment was an application under Order 10 rule 11 of the Civil Procedure Rules to set aside the default judgment. The court dismissed the motion, upheld the preliminary objection, dismissed the suit, and made no order as to costs, noting the Order 10 avenue remains open to the plaintiffs.

Key legal issues

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01

Whether the suit is res judicata

Holding

Yes - the same subject matter (LR Loitoktok/Kimana-Tikondo/6238) and the same parties were litigated in Kajiado ELC 63 of 2020, decided by a court of competent jurisdiction

Reasoning

The court found the parties in the earlier suit - Serah Maundu Musongo, Justus Mutiso and Antony Kariuki Gitau - are the same as in this suit, with only the 1st plaintiff added. The subject matter is the same parcel of land. A judgment was issued by a competent court, so Section 7 of the Civil Procedure Act barred a fresh suit.

p. 2
02

Whether the plaintiffs should have filed a fresh suit or proceeded under the earlier suit

Holding

The proper avenue was Order 10 Civil Procedure Rules rule 11, to set aside the ex parte judgment, which remains open to the parties

Reasoning

Order 10 deals with consequences of non-appearance, default of defence and failure to serve. Rule 11 allows the court that entered a default judgment to set aside or vary it and any consequential decree on just terms. That avenue remains open; only the route of a fresh suit is closed.

p. 3

Legal principles established

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  • A fresh suit between the same parties over the same subject matter already decided by a competent court is barred by Section 7 of the Civil Procedure Act; the remedy against an ex parte default judgment lies under Order 10 rule 11 of the Civil Procedure Rules

Court orders

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  1. 1.Dismissal of the notice of motion dated 13/2/2024 seeking a temporary injunction
  2. 2.Upholding of the notice of preliminary objection dated 26/2/2024 and dismissal of the suit
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 40 rules 1, 2 and 3
  • Civil Procedure RulesOrder 50 rules 1 and 2
  • Civil Procedure RulesOrder 10 rule 11
Jurisdiction invoked
Sections 1A, 1B, 63(e), 3 and 3A of the Civil Procedure Act; Orders 40 rules 1, 2 and 3 and 50 rules 1 and 2 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, "Keriempere & 2 others v Gitau (Environment & Land Case E009 of 2024) [2024] KEELC 6810 (KLR)", Case Analysis (2024). Not stated in the extract (Kajiado ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6810/eng@2024-10-09

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