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ELCStruck OutELC Civil Suit (application dated 31st May 2024)· [2024] KEELC 7133 (KLR)

Ahmed & 2 others v Kenya United Steel Company (2006) Limited (Land Case E051 of 2024) [2024] KEELC 7133 (KLR)

Environment and Land Court
30 October 2024
2,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court threw out a fresh land dispute because the same parties had already litigated the identical plot and their appeal is still pending.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Mombasa by a notice of motion dated 31st May 2024 under sections 34 and 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules seeking temporary injunctions to restrain the defendant from constructing steel structures, permanent buildings, concrete walls and gates, and from allowing third-party wastage, on plot 780/VI/MN (CR2155) measuring 20.5 acres registered in the name of Asila Binti Mwijabu (deceased). The applicants claimed to be beneficiaries of the land under a judgment of Lady Justice A. Omollo ordering the 20.5 acres to vest in the deceased settlor. The respondent opposed, relying on a registered Waqf of 19th August 1943 and on subsisting stay-of-execution orders pending Civil Appeal No. E141 of 2022 before the Court of Appeal, arguing that the suit was res judicata and an abuse of process. The court considered the doctrine of res judicata under section 7 of the Civil Procedure Act, applying the conjunctive test in the Maina Kiai case and the George Kamau Kimani decision. Noting the prior litigation, the pending appeal and the applicants' application to be enjoined to that appeal, the court held the suit clearly res judicata and declined to determine the injunction application, striking out both the application and the suit with costs.

Key legal issues

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01

Whether the suit and application are res judicata

Holding

Yes. The parties have previously litigated over the same suit land, the judgment of Lady Justice A. Omollo was delivered, stay orders pending appeal subsist, and the appeal is pending before the Court of Appeal.

Reasoning

The court found the parties had litigated before in a similar matter over the same 20.5 acres; stay of execution pending appeal in Civil Appeal E141 of 2022 is in place and the applicants had even applied to be enjoined to that appeal. Granting the present relief would amount to this court sitting on appeal over a sister court's stay orders. The suit is therefore res judicata and an abuse of process; joinder to the pending appeal is the applicants' option.

p. 4

Legal principles established

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  • All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively for the doctrine to be invoked.

Court orders

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  1. 1.The application dated 31st May 2024 and the suit struck off with costs

Authorities

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Legislation

  • Civil Procedure ActSections 34, 63(e), 7
  • Civil Procedure RulesOrder 40 Rules 1, 3 & 4

Cases cited (4)

  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    (2017) eKLR
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • George Kamau Kimani & 4 Others vs County Government of Trans Nzoia & Another
    (2014) eKLR
  • ELC Civil Suit No. 470 of 2011 Ahmed Mohamed Ahmed vs Ahmed Mohideed & KUSCO (2006)
Jurisdiction invoked
Sections 34 and 63(e) of the Civil Procedure Act (Cap. 21) and Order 40 Rules 1, 3 & 4 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, "Ahmed & 2 others v Kenya United Steel Company (2006) Limited (Land Case E051 of 2024) [2024] KEELC 7133 (KLR)", Case Analysis (2024). ELC Civil Suit (application dated 31st May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7133/eng@2024-10-30

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