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)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation - when the right of action accrues for land of a deceased vendor
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
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.
Res judicata
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
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.
Temporary injunction
The Plaintiffs failed to establish a prima facie case with a probability of success and were not entitled to the injunction sought
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
#- 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
#- 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.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.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.That costs of the application dated 9th April 2024 and the suit be awarded to the 1st, 2nd & 3rd Defendants jointly and severally
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.