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ELCDismissedELC Case (Originating Summons dated 21st March 2022); Notice of Motion dated 10/7/2024

Zuma & 46 others v Said & 4 others (Environment & Land Case E005 of 2022) [2024] KEELC 7125 (KLR)

Environment and Land Court
30 October 2024
3,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed an attempt to strike out a land ownership claim, ruling that withdrawn or consent-settled cases do not make a new suit res judicata.

What this practically means

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Executive summary

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The 1st to 4th Defendants moved the court under Sections 1A, 1B, 3A and 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules 2010 seeking striking out of the Plaintiffs' Originating Summons dated 21st March 2022 claiming adverse possession of LR No Kwale/Mwavumbo/4, with costs. They argued the suit was res judicata, citing Mombasa ELC No 39 of 2020 (later Kwale ELC No 180 of 2021) - an eviction suit resolved by consent - and Kwale ELC No 24 of 2021, an earlier adverse possession suit withdrawn by consent on 21/3/2022. They also contended the land was unoccupied and that the deponent lacked authority to swear the affidavit. The application was unopposed despite proper service. The court, per A E Dena J, applied the Section 7 prerequisites and the Abubakar elements of res judicata and maintained that neither prior suit had been heard and finally determined on merit: one ended in consent and was marked settled, the other was withdrawn with orders discharged. The instant suit was the only live suit on ownership, so the parties had to ventilate their whole case before res judicata could arise. The court criticised the refiling of an application similar to one determined on 26/1/2023 as an abuse of process and a waste of judicial resources, citing Muchanga Investments. On the occupation argument, the court noted the allegation was unsupported by evidence beyond the site visit report and held a proper detailed response should be filed instead. Guided by D.T. Dobie and Co-operative Merchant Bank v Wekesa, it held no case was made for striking out. The Notice of Motion dated 10/7/2024 was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Originating Summons dated 21st March 2022 offends Section 7 of the Civil Procedure Act (res judicata) and should be struck out
  2. 2.Whether the Originating Summons discloses no reasonable cause of action or is otherwise an abuse of the court process under Order 2 Rule 15

Key legal issues

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01

Whether the instant suit is res judicata given the prior suits Mombasa ELC No 39 of 2020 (Kwale ELC No 180 of 2021) and Kwale ELC No 24 of 2021

Holding

No - neither prior suit was heard and finally determined; one was withdrawn by consent and the other was dismissed without a full hearing, so the Section 7 prerequisites are unmet.

Reasoning

The court applied the Section 7 prerequisites and the Abubakar v Federal Mortgage Bank elements. It found the consent in ELC 39 of 2020 was never set aside and the record reverted to 24/11/2022, leaving the instant suit as the only pending suit on ownership; the parties must ventilate their whole case here before res judicata can arise.

p. 5
02

Whether the repeated striking-out application amounts to an abuse of the court process

Holding

Yes - the court found that refiling an application similar to one already determined on 26/1/2023 was an abuse of process and a waste of judicial resources.

Reasoning

The court noted the same res judicata arguments had been made in an application dated 14/4/2022 and determined in the ruling of 26/1/2023. Citing Muchanga Investments, it held that employing the judicial process to the annoyance of an opponent and the inefficient administration of justice is an abuse, and such conduct should be frowned upon as it contributes to case backlog.

p. 5
03

Whether the Originating Summons should be struck out under Order 2 Rule 15

Holding

No - the claim shows a semblance of a cause of action; the allegation that the plaintiffs are not in occupation was unsupported by evidence and a proper detailed response should be filed instead.

Reasoning

Guided by D.T. Dobie and Co-operative Merchant Bank v Wekesa, the court held a suit should not be summarily dismissed unless plainly and obviously hopeless. The defendants' occupation argument was merely asserted in the affidavit without evidence, and effort had gone into the res judicata plea rather than challenging the adverse possession claim on its merits.

p. 5

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act requires that the former suit has been heard and finally determined by a court of competent jurisdiction; suits withdrawn by consent or not heard on merit cannot found the plea.
  • Pleadings may only be struck out where they disclose no semblance of a cause of action and are incurable by amendment.
  • Repeatedly filing applications over issues already determined by the court constitutes an abuse of the judicial process.

Court orders

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  1. 1.The Notice of Motion dated 10/7/2024 is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 7 of the Civil Procedure Act; Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules 2010

Relief refused

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Striking out of the Plaintiff's Originating Summons dated 21st March 2022 with costs to the Defendants

The previous suits were not heard and finally determined on merit, so res judicata is not established; the suit shows a semblance of a cause of action and the application was an abuse of process, being a repeat of an earlier application determined on 26/1/2023

p. 5

Costs of the suit and the application awarded to the Defendants

The application was unmerited; costs were not awarded

p. 6

Costs

The Notice of Motion dated 10/7/2024 is dismissed with no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that the Notice of Motion dated 10/7/2024 is unmerited and the same is hereby dismissed with no orders as to costs.
p. 6final orders - dismissal of the striking-out application
Normally a law suit is for pursuing it. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment.
p. 3threshold for striking out pleadings
The court maintains its stance, that Mombasa ELC No 39 of 2020[ Kwale ELC No 180 of 2021] and Kwale ELC No 24 of 2021[Formerly Mombasa ELC No 97 of 2021] have not been heard on merit.
p. 5res judicata prerequisites not met
In my opinion, this is clearly abuse of the court process and a waste of judicial resources.
p. 4abuse of process by repeat applications
A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment.
p. 6striking-out standard adopted

Issues in the judgment

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minor

Internal inconsistency in dates of the withdrawn suit: the application narrative states the plaintiffs 'filed the instant suit seeking similar orders' after withdrawal on 21/3/2022, but elsewhere the earlier application is dated 14/4/2022 while paragraph 3 refers to 'Kwale ELC No 24 of 2020' whereas the suit elsewhere is numbered 24 of 2021.

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, "Zuma & 46 others v Said & 4 others (Environment & Land Case E005 of 2022) [2024] KEELC 7125 (KLR)", Case Analysis (2024). ELC Case (Originating Summons dated 21st March 2022); Notice of Motion dated 10/7/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7125/eng@2024-10-30

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