[2023] KEELC 18027 (KLR)

Source-derived case information.

Citation: [2023] KEELC 18027 (KLR)
Parties: Plaintiff: Francis Kahora Kamau; Plaintiff: James Mwangi Kahora; Defendant: Philisia Nyambura; Defendant: Michael Waweru; Defendant: Land Registrar Naivasha
Court: Environment and Land Court
Court Station: Environment and Land Court at Nakuru
Jurisdiction: Kenya
Case Number: Environment & Land Case 176 of 2018
Procedural Posture: Environment and Land Case / Ruling on Preliminary Application
Outcome: application struck out
Judges: FM Njoroge
Legal Topics: Res Judicata, Striking Out Applications, Service of Process, Estate Succession
Source Language: en

Civil Procedure Land and Property Res Judicata Striking Out Applications Service of Process Estate Succession

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Summary, issues, holding and outcome

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Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2

Parties

Francis Kahora Kamau

Plaintiff

James Mwangi Kahora

Plaintiff

Philisia Nyambura

Defendant

Michael Waweru

Defendant

Land Registrar Naivasha

Defendant

Procedural Posture

Environment and Land Case / Ruling on Preliminary Application

Legal Issues

1 Whether the suit is res judicata due to a previous suit involving the same parties and subject matter.
2 Whether the application to strike out the suit was properly before the court given late filing and lack of service.

Ratio Decidendi

The court found that the defendants' application to strike out the suit on grounds of res judicata was filed outside the time frame set by the court and without any extension of time. Furthermore, there was no evidence that the application was ever served on the plaintiffs, as no affidavit of service was filed. In the absence of proper filing and service, the application was deemed improperly before the court. The court therefore struck out the application without considering its merits, and made no order as to costs.

Court Disposition

application struck out

Orders

The application dated April 3, 2023 is struck out for being improperly before the court.
No order as to costs.

Full Case Text

Judgment text and source record

26 paragraphs

Kamau & another (Suing as the representatives of the Estate of Esther Watiri Kahora) v Nyambura & 2 others (Environment & Land Case 176 of 2018) [2023] KEELC 18027 (KLR) (8 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18027 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 176 of 2018

FM Njoroge, J

June 8, 2023

Between

Francis Kahora Kamau

1st Plaintiff

James Mwangi Kahora

2nd Plaintiff

Suing as the representatives of the Estate of Esther Watiri Kahora

and

Philisia Nyambura

1st Defendant

Michael Waweru

2nd Defendant

Land Registrar Naivasha

3rd Defendant

Ruling

1. The 1st and 2nd defendants through a notice of motion dated April 3, 2023 seeks the following orders:a.That this honourable court be pleased to find that this suit is res judicata and dismiss the same.b.That the costs of this application and suit be provided for.

2. The basis for the application is that the 1st and 2nd defendants filed a suit Nakuru ELC 40 of 2013 seeking eviction orders against Grace Nyokabi Kinuthia who is in occupation of land parcel numbers Naivasha/ Mwichiringi Block 2/771 and 772; that Grace responded in an affidavit in that suit that she owns the land and called the plaintiff herein as a witness; that judgment was delivered in that case in favour of the 1st and 2nd defendants herein on October 12, 2017; that it is not correct for the deponent of the verifying affidavit to state that there has not been any previous suit relating to the suit land; that Esther Watiri Kahoro mentioned in the instant case and Grace Nyokabi is one and the same person; that Grace failed in the earlier suit and Esther is now seeking in the present suit to succeed where Grace failed and the suit is hence an attempt to re-litigate the matters relating to the suit land.

3. The court had on March 16, 2023 given clear time frame, 14 days, for the filing of the application since counsel for the defendants had intimated that he intended to file it. The application was filed on April 20, 2023 long after the deadline had passed. The application has never been mentioned before as the matter has never been listed again since that date when those directions were issued. No response was filed by the plaintiffs. However, there is no evidence that the application was ever served upon the plaintiffs as there is no affidavit of service.

4. Consequently, as there was no extension of time to file the application, and there is no evidence that it was ever served, the same is improperly before court and it is hereby struck out with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 8TH DAY OF JUNE 2023. MWANGI NJOROGEJUDGE, ELC, NAKURU

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