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ELCStruck OutNot stated in the excerpt· [2024] KEELC 7244 (KLR)

Mojaria v Ringsview Apartments Limited & 7 others (Environment & Land Case E023 of 2024) [2024] KEELC 7244 (KLR)

Environment and Land Court
30 October 2024
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a fresh property dispute because Kenyan law requires questions about enforcing an existing judgment to go back to the court that issued it.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court by Notice of Motion dated 25.1.2024 seeking interim injunctions restraining the 1st Defendant from disposing of or dealing with eighteen apartments on LR No. 4858/11 (Ringview Apartments), and similar orders against the 2nd Defendant in respect of apartment A4. He relied on a judgment delivered on 9.2.2023 in Milimani ELC Case No. 782 of 2014, in which the court had directed transfer of apartments C1 and A4 to him upon payment of Ksh.2.5 million, and complained that a lease over apartment A4 had nonetheless been registered in favour of the 2nd Defendant on 29.4.2016. The 1st, 2nd, 5th, 6th, 7th and 8th Defendants opposed, contending the suit was res judicata, that the plaintiff should execute the existing decree rather than file a fresh suit, and that the apartments belonged to third-party purchasers. The court held that the suit was in substance aimed at effectuating the conditional orders in ELC 782 of 2014, and that questions of compliance with that decree fall to be determined by the executing court under Section 34 of the Civil Procedure Act, not by a separate suit. It further found that the suit's net effect was to scuttle the earlier judgment, amounting to an abuse of process, noting the plaintiff had also filed a similar suit, LC E025 of 2024. The court dismissed the application, struck out the entire suit with costs to the 1st, 2nd and 5th to 8th Defendants, and directed that its orders apply in LC E025/2024.

Key legal issues

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01

Whether the suit is barred as res judicata / Section 34 of the Civil Procedure Act

Holding

The suit was intended to pursue effectuation of the conditional orders in ELC 782 of 2014 and therefore barred; such questions belong before the executing court

Reasoning

The court found that the relief sought (declaration of ownership of apartment A4) was aimed at implementing the judgment of 9.2.2023 in Milimani ELC 782 of 2014, which had directed transfer of apartments C1 and A4 upon payment of Ksh.2.5 million. Whether that conditional order was complied with is a question of execution of the decree, determinable only by the executing court. The plaintiff had seven years to litigate all issues in the prior suit.

p. 3
02

Whether the suit was an abuse of the court process

Holding

Yes; the suit, having the net effect of scuttling the prior judgment and being duplicated by another similar suit (LC E025 of 2024), was an abuse of process

Reasoning

Relying on the definition of abuse and on Republic v Paul Kihara Kariuki Ex parte Law Society of Kenya, the court held that pursuing the same matter through two court processes is a gamble on the judicial process. The suit would defeat the judgment in ELC 782 of 2014, and the plaintiff had also filed a similar suit, LC E025 of 2024.

p. 4

Legal principles established

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  • Questions arising between parties to a suit relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree and not by a separate suit (Section 34, Civil Procedure Act)
  • A suit whose net effect is to scuttle a judgment in a prior suit between the same parties constitutes an abuse of the court process

Court orders

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  1. 1.The application dated 25.1.2024 is dismissed
  2. 2.The entire suit is struck out with costs to the 1st, 2nd, 5th - 8th defendants
  3. 3.The orders given herein to apply in the case LC E025/2024

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 34

Cases cited (15)

  • Edward Monge Lengusuranga v James Lanaiyara & Another
    [2019] eKLR
  • Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende
    [2022] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No. 77 of 2012 [2014] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Teenai
    [2018] eKLR
  • Xtranet Communications Limited v Westlands Skye Development Limited
    [2019] eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    [2015] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR
  • Nancy Mwangi T/A Worthlin Marketers v Airtel Networks (k) Ltd (Formerly Celtel Kenya Ltd) & 2 Others
    [2014] eKLR
  • Salomon v Salomon & Co
    (1987) AC 22
  • Ukwala Supermaket v Jaideep Shah & Another
    [2022] eKLR
  • Mugenyi & Company Advocates v The Attorney General
    [1999] 2 EA 1999
  • South Nyanza Sugar Co Ltd v Alfred Sagwa Mdeizi t/a Pave Auctioneers
    [2010] eKLR
  • Republic v City Council of Nairobi & 2 others
    [2014] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (no specific provision cited in the judgment)

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, "Mojaria v Ringsview Apartments Limited & 7 others (Environment & Land Case E023 of 2024) [2024] KEELC 7244 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7244/eng@2024-10-30

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