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ELCStruck OutMombasa ELC (Plaint dated 9th April 2024, filed 12th April 2024)· [2024] KEELC 7332 (KLR)

Thoya & another (Suing as the administrators of the Estate of the Estate of Makwangara Kazungu Gunga) v Ainushamsi Multiple Agencies Limited & 2 others (Environment & Land Case E028 of 2024) [2024] KEELC 7332 (KLR)

Environment and Land Court
9 October 2024
5,032 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court struck out a land dispute because the same issues were already decided in an earlier case — you cannot relitigate settled matters.

What this practically means

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Executive summary

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The Plaintiffs, administrators ad litem of the estate of Makwangara Kazungu Gunga, moved the court by Notice of Motion dated 9th April 2024 seeking a temporary injunction to restrain the 1st Defendant, Ainushamsi Multiple Agencies Limited, from alienating or dealing with Plot No. 28815/Mariakani CR. No. 60948 pending determination of their suit. Their claim arose from a 2010 sale agreement under which the Deceased sold the suit property to the 1st Defendant for Kshs. 18,920,000; only the deposit of Kshs. 2,130,000 was paid, yet the 1st Defendant transferred the property to itself, allegedly forging documents and understating the consideration. The 1st Defendant opposed, arguing limitation under Section 7 of the Limitation of Actions Act, and that the suit offended res judicata given Justice N. Matheka's judgment of 24th April 2024 in Mombasa ELC No. 241 of 2020 cancelling the 1st Defendant's title. The court framed four issues. On limitation, it held the claim was not time-barred because under Section 9(2) the right of action accrued on the Deceased's death on 2nd February 2016. On res judicata, however, it found the suit barred: the validity of the 1st Defendant's title had already been litigated and determined, and the title cancelled, in ELC No. 241 of 2020. On injunction, applying Giella v Cassman Brown, Nguruman and Mrao, the Plaintiffs had no prima facie case since their cause of action had already been resolved. The court dismissed the application, struck out the entire suit, and awarded costs to the 1st, 2nd and 3rd Defendants jointly and severally.

Key legal issues

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01

Limitation - when the right of action accrues for land of a deceased vendor

Holding

The suit was not time-barred; under Section 9(2) of the Limitation of Actions Act the limitation period ran from the date of death of the deceased vendor (2nd February 2016), not from the 2010 sale agreement

Reasoning

The suit was founded on a 2010 sale agreement and a 2012 transfer, seemingly over 13 years before filing. However, Section 9(2) of the Limitation of Actions Act provides that where the deceased was in possession and last entitled to the land, the right of action accrues on death. The Deceased died on 2nd February 2016 and the Plaintiffs obtained a Limited Grant Ad Litem on 17th August 2021, so the claim was within twelve years.

p. 6
02

Res judicata

Holding

The suit and application offend the doctrine of res judicata as the legality of the 1st Defendant's title was determined and the title cancelled in Mombasa ELC No. 241 of 2020, a judgment delivered on 24th April 2024 by Justice N. Matheka

Reasoning

The elements of res judicata were satisfied: the issues were decided by a competent court on 24th April 2024; the matter in dispute was substantially the same, namely the cancellation of the transfer and the validity of the 1st Defendant's title; and the former suit considered the root of the 1st Defendant's title, which is the Plaintiffs' title, finding it illegal. The court cannot relitigate a settled issue; the Plaintiffs' attempt to reintroduce the claim amounts to abuse of court process.

p. 9
03

Temporary injunction

Holding

The Plaintiffs failed to establish a prima facie case with a probability of success and were not entitled to the injunction sought

Reasoning

Applying Giella v Cassman Brown as clarified in Nguruman Limited and Mrao Limited, an applicant must establish a prima facie case, irreparable injury and balance of convenience sequentially. Here the Plaintiffs seek to introduce a cause of action already resolved by a court of competent jurisdiction; the title was cancelled in the former suit. With no prima facie case, the other limbs need no consideration, and the application must fail.

Legal principles established

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  • Where an action to recover land of a deceased person is brought and the deceased was in possession and last entitled to the land at death, the right of action accrues on the date of death (Section 9(2), Limitation of Actions Act)
  • Res judicata bars relitigation of issues already finally determined by a competent court between the same parties or parties litigating under the same title
  • The three Giella v Cassman Brown conditions for an interlocutory injunction must be satisfied sequentially, without leap-frogging

Court orders

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  1. 1.That the suit herein offends the Doctrine of Res Judicata to the Civil case ELC No. 241 of 2020 contrary to the provision of Section 7 of the Civil Procedure Act, Cap. 21
  2. 2.That the Notice of Motion application dated 9th April 2024 be and is hereby found to be unmeritorious and thus it be dismissed with costs
  3. 3.That the suit through a Plaint dated 9th April 2024 and filed on 12th April 2024 be and is hereby struck out with costs
  4. 4.That costs of the application dated 9th April 2024 and the suit be awarded to the 1st, 2nd & 3rd Defendants jointly and severally

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 7, 27(1)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3, 4
  • Limitation of Actions ActSections 7, 9(2)
  • Land Registration ActSection 26
  • Constitution of Kenya, 2010

Cases cited (9)

  • Sohanlal Durgadass Rajput & another v Divisional Integrated Development Programmes Co. Limited
    [2021] eKLR
  • Mehta v Shah
    [1965] E.A 321
  • Marindany v Kiplangat & another
    (Environmental and Land Originating Summons E014 of 2021) [2024] KEELC 3395 (KLR) (25 April 2024)
  • Gurbachau v Yowani Ekori
    (1958) EA 450
  • Henderson v Henderson
    67 ER 313
  • Giella v Cassman Brown
  • Nguruman Limited
  • Kenya Commercial Finance Co. Limited v Afraha Education Society
    [2001] Vol. 1 EA 86
  • MRAO Limited v First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010

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, "Thoya & another (Suing as the administrators of the Estate of the Estate of Makwangara Kazungu Gunga) v Ainushamsi Multiple Agencies Limited & 2 others (Environment & Land Case E028 of 2024) [2024] KEELC 7332 (KLR)", Case Analysis (2024). Mombasa ELC (Plaint dated 9th April 2024, filed 12th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7332/eng@2024-10-09

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