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ELCStruck OutNot stated in the judgment (Machakos ELC suit; former suit was Machakos ELC Petition No. 8 of 2021)· [2024] KEELC 7413 (KLR)

Mareka & another v Gimu Development Company (K) Limited & 4 others (Environment & Land Case E004 of 2023) [2024] KEELC 7413 (KLR)

Environment and Land Court
6 November 2024
ANA. Nyukuri
5,884 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 3rd defendant (National Highways Authority, as described in the record) moved the court by Notice of Motion dated 11th August 2023 seeking striking out of the plaintiffs' suit dated 14th December 2022 as res judicata under Section 7 of the Civil Procedure Act, on the strength of the judgment in Machakos ELC Petition No. 8 of 2021 delivered on 25th May 2022. The plaintiffs opposed, arguing that the former petition concerned compensation under Gazette Notice No. 9536 of 29th September 2017 and the awards of 23rd January 2018, whereas the present suit claims compensation under the World Bank Operational Policy on Involuntary Settlement; they also argued that the former court's findings on that policy were mere obiter dictum and that additional parties had been joined. The court framed a single issue: whether the suit is res judicata. Applying Section 7 and the conjunctive elements in IEBC v Maina Kiai, and Henderson v Henderson as adopted in John Florence Maritime, the court held that issues arise from all parties' pleadings; the World Bank Policy compensation issue was raised by the 2nd respondent in the petition and squarely determined, so it was not obiter. The subject matter, cause of action and parties were identical, the addition of the Land Registrar and Gimu Development Company being cosmetic, and the ELC was a competent court. The suit was held res judicata and dismissed with costs to the defendants. Judgment delivered virtually at Machakos on 6th November 2024 by A. Nyukuri, Judge.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is res judicata; all elements are satisfied - the former suit was determined on merit with finality by a competent court, between the same parties, over the same subject matter

Reasoning

The court found the subject matter, cause of action and parties identical: the plaintiffs were the petitioners in the former suit, and the added parties (Land Registrar and Gimu Development) were cosmetic additions. The issue of compensation under the World Bank Operational Policy was raised by the 2nd respondent in the former petition and squarely determined, so the court's findings on it were part of the decision, not obiter dictum. The ELC was competent, the judgment was final and on merit.

p. 16
02

Whether the court's findings in paragraph 61 of the former judgment on World Bank Operational Policy compensation were obiter dictum

Holding

The findings were not obiter dictum but a determination on one of the issues in dispute, since the 2nd respondent raised the World Bank Policy issue in its response and the court determined it

Reasoning

The court reasoned that issues arise from all parties' pleadings. The 2nd respondent expressly maintained that the compensation offered was under the World Bank Operational Policy, not compulsory acquisition. The petitioners' failure to plead or respond to that issue did not make it a non-issue; in any event, a matter belonging to the subject of litigation that could have been raised with due diligence cannot ground a fresh suit, per Henderson v Henderson as adopted by the Supreme Court in John Florence Maritime.

p. 16

Legal principles established

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  • Issues in a suit arise from the pleadings of all parties, not only the claimant; an issue raised by a respondent and determined in a former suit cannot be re-litigated in a fresh suit
  • Addition of new parties to a subsequent suit does not evade res judicata where the claim's character is unchanged
  • A matter that ought to have been raised in a former suit with due diligence cannot found a fresh suit even if not raised there

Court orders

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  1. 1.The plaintiffs' suit is struck out/dismissed for being res judicata
  2. 2.Costs of the suit awarded to the defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land and compulsory acquisition disputes; res judicata under Section 7 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mareka & another v Gimu Development Company (K) Limited & 4 others (Environment & Land Case E004 of 2023) [2024] KEELC 7413 (KLR)", Case Analysis (2024). Not stated in the judgment (Machakos ELC suit; former suit was Machakos ELC Petition No. 8 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7413/eng@2024-11-06

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