[2019] KEELC 3877 (KLR)
The court found that the issues raised by the Plaintiffs had already been determined in Chief Magistrate’s Court Civil Case No. 6028 of 2011, and that the decree issued in that case was valid and had not been set aside or appealed. The court held that Section 7 of the Civil Procedure Act bars the court from...
Source-derived case information.
- Citation
- [2019] KEELC 3877 (KLR)
- Parties
- Plaintiff: Hassan Sheramo; Plaintiff: Adan Abdi Emoi; Plaintiff: Naomi Muturi; Plaintiff: Karanja Ngema; Defendant: Eric Gitonga Bengi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2015
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- suit dismissed as res judicata
- Legal Topics
- Res Judicata, Eviction Decrees, Jurisdiction of Courts, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hassan Sheramo
Plaintiff
Adan Abdi Emoi
Plaintiff
Naomi Muturi
Plaintiff
Karanja Ngema
Plaintiff
Eric Gitonga Bengi
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata, having been determined in Chief Magistrate’s Court Civil Case No. 6028 of 2011.
- 2 Whether the Plaintiffs are barred from re-litigating issues already determined by a competent court.
- 3 Whether the decree in CMCC No. 6028 of 2011 is valid and binding on the parties.
Ratio Decidendi
The court found that the issues raised by the Plaintiffs had already been determined in Chief Magistrate’s Court Civil Case No. 6028 of 2011, and that the decree issued in that case was valid and had not been set aside or appealed. The court held that Section 7 of the Civil Procedure Act bars the court from entertaining a suit or issue that has already been directly and substantially determined between the same parties by a competent court. Since the Plaintiffs sought to re-litigate matters already decided, the suit was held to be res judicata and was dismissed with costs to the Defendant.
Court Disposition
suit dismissed as res judicata
Orders
- The Defendant’s preliminary objection dated 16/3/2018 is allowed.
- The Plaintiffs' suit is dismissed with costs to the Defendant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC NO.210 OF 2015
HASSAN SHERAMO........................................1ST PLAINTIFF
ADAN ABDI EMOI...........................................2ND PLAINTIFF
NAOMI MUTURI.............................................3RD PLAINTIFF
KARANJA NGEMA.........................................4TH PLANITIFF
VERSUS
ERIC GITONGA BENGI.....................................DEFENDANT
RULING
The Defendant raised a preliminary objection to the Plaintiff’s suit which is dated 16/3/2018 to the effect that the matter before this court is res judicata, having been determined in the Chief Magistrate’s Court Civil Case No. 6028 of 2011 and that the Plaintiffs ought to have appealed against that decision and not filed this suit. The Plaintiffs did not file a response to the preliminary objection.
On 23/10/2018 when this matter came up, the Plaintiffs’ counsel indicated that he would make oral submissions on the date the objection would be heard. The court fixed the hearing of the preliminary objection for 13/2/2019. The Plaintiffs’ advocate did not attend court when the preliminary objection was argued in court on 13/2/2019.
The Defendant’s counsel submitted that paragraph 5 of the plaint complains of eviction which was carried out following a decree in Chief Magistrate’s Court Civil Case No. 6028 of 2011and that the decree has not been set aside and no appeal was lodged against that decision.
The court has considered the preliminary objection, submissions by counsel for the Defendant, pleadings and documents filed in this suit and the law applicable. It has not been shown that the court which passed the decree lacked jurisdiction. The decision of that court determined the issues now sought to be litigated upon. The decree issued in CMCC NO.6028 of 2011 is valid. Section 7 of the Civil Procedure Act, prohibits the court from trying any suit or issue which was directly or substantially determined in a previous suit between the same parties by a competent court.
The Defendant’s preliminary objection dated 16/3/2018 is allowed. The suit is dismissed with costs to the Defendant.
Dated and delivered at Nairobi this 11th day of March 2019
K.BOR
JUDGE
In the presence of:-
Mr. E. Njeru for the Defendant
Mr.Owuor-Court Assistant
No appearance for the Plaintiffs