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ELCDismissedEldoret HCCC (Environment and Land Court) – suit filed 11th August 2010; notice of motion dated 23rd July 2013· [2013] KEELC 29 (KLR)

Kenya Railways v Namusu Enterprises Ltd & 3 others [2013] KEELC 29 (KLR)

High Court of Kenya (Environment and Land Court)
27 November 2013
MSMunyao Sila
3,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that losing an earlier land case on a technicality does not stop Kenya Railways from filing the same case again.

What this practically means

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Executive summary

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The 2nd and 3rd defendants moved the court by notice of motion dated 23rd July 2013 seeking dismissal of Kenya Railways Corporation's suit over land parcel Eldoret Municipality Block 3/58 as res judicata, vacation of interim inhibition orders, and extension of the outcome to Eldoret HCCC No. 162 of 2010. They relied on a ruling of 21st May 2008 by Ibrahim J in Eldoret HCCC No. 76 of 2006, a former suit between the same parties over the same land and on the same fraud allegations, in which the entire suit was dismissed for want of the statutory notice required by Section 136(2) of the Government Lands Act. The court identified the four ingredients of res judicata under Section 7 of the Civil Procedure Act and found that although there was a former suit between effectively the same parties over the same subject matter, the issues were never heard and finally decided, the dismissal having been on a preliminary technicality. Following Keharchand vs Jan Mohamed, the court held the present suit was not barred, distinguishing the authorities cited by the applicants and declining to follow Francis Kariuki Kinja. Prayer 2 was unnecessary because the inhibition orders had lapsed by effluxion of time; prayer 3 failed because Eldoret HCCC No. 162 of 2010 concerned a different parcel (Block 3/56) and different parties who had not been heard. The court also declined to determine a limitation argument that had been smuggled into the grounds without a proper prayer. The application was dismissed with costs to the plaintiff, expressly without any decision on limitation.

Key legal issues

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01

Whether the ruling of 21st May 2008 in Eldoret HCCC No. 76 of 2006 rendered this suit res judicata

Holding

No. Three of the four ingredients of res judicata were met, but the issue in the former suit was never heard and finally decided; it was dismissed for non-compliance with Section 136(2) of the Government Lands Act.

Reasoning

Section 7 of the Civil Procedure Act requires, among other things, that the matter in issue in the former suit was heard and finally decided. The former suit was dismissed on a preliminary point (absence of statutory notice) without the court ever determining whether the title was properly issued or whether Kenya Railways was entitled to the land. On the authority of Keharchand vs Jan Mohamed, a dismissal on a preliminary point does not bar a second suit on the same cause of action.

p. 4
02

Whether an issue not included in the prayers of a notice of motion, but raised in the grounds and affidavit, may be determined

Holding

No. The court declined to determine the limitation argument as it was neither prayed for nor adequately amplified, and would prejudice the respondent.

Reasoning

The applicants sought dismissal of the suit for being filed out of time in the grounds and a passing reference in the supporting affidavit, but not in the prayers on the face of the motion. The court held it inappropriate to consider an unpleaded issue without giving the plaintiff ample opportunity to reply, and directed the applicants to file a proper application if they wished to pursue it.

p. 6

Legal principles established

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  • A suit dismissed on a preliminary point of technicality, without the issues being heard and determined on the merits, cannot found a plea of res judicata against a later suit on the same cause of action
  • Res judicata under Section 7 of the Civil Procedure Act requires a former suit, the same matter directly and substantially in issue, same parties litigating under the same title, and the issue heard and finally decided

Court orders

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  1. 1.Prayer 1 of the application (dismissal of the suit as res judicata) dismissed
  2. 2.Prayer 2 (variation or vacation of the inhibition orders) declined, the interim orders having lapsed by effluxion of time
  3. 3.Prayer 3 (that the orders apply to Eldoret HCCC No. 162 of 2010) dismissed
  4. 4.The whole application dismissed with costs to the plaintiff
  5. 5.No decision made on whether the suit is statute barred
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 7 and 80 of the Civil Procedure Act, CAP 21; Order 2 Rule 15 and Order 51 Rule 1 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, "Kenya Railways v Namusu Enterprises Ltd & 3 others [2013] KEELC 29 (KLR)", Case Analysis (2013). Eldoret HCCC (Environment and Land Court) – suit filed 11th August 2010; notice of motion dated 23rd July 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/29/eng@2013-11-27

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