[2017] KEELC 2623 (KLR)
The court found that the Defendants failed to establish that the present suit is res judicata. The previous suit, Kiambu Civil Suit No. 505 of 1993, was brought by only one of the current Plaintiffs in his personal capacity and was not heard on its merits but struck out on a preliminary objection. The current suit...
Source-derived case information.
- Citation
- [2017] KEELC 2623 (KLR)
- Parties
- Plaintiff: Peter Githii Wanjiru; Plaintiff: John Kinyanjui Kinuthia; Plaintiff: Joseph Karara Kinuthia; Plaintiff: Nene Benson Githii; Defendant: Kioi Githii; Defendant: George Githii Kioi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 575 of 2008
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Eviction and Vacant Possession
- Outcome
- application dismissed with costs to the plaintiffs
- Legal Topics
- Res Judicata, Eviction, Vacant Possession, Trespass, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Githii Wanjiru
Plaintiff
John Kinyanjui Kinuthia
Plaintiff
Joseph Karara Kinuthia
Plaintiff
Nene Benson Githii
Plaintiff
Kioi Githii
Defendant
George Githii Kioi
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Eviction and Vacant Possession
Legal Issues
- 1 Whether the present suit is res judicata in light of Kiambu Civil Suit No. 505 of 1993.
- 2 Whether the Plaintiffs are trespassers on the suit property and liable to eviction.
Ratio Decidendi
The court found that the Defendants failed to establish that the present suit is res judicata. The previous suit, Kiambu Civil Suit No. 505 of 1993, was brought by only one of the current Plaintiffs in his personal capacity and was not heard on its merits but struck out on a preliminary objection. The current suit involves additional Plaintiffs acting as administrators and beneficiaries of the estate of Mary Wanjiru Githiiyi, and the issues raised are not identical to those in the previous suit. Therefore, the conditions for res judicata have not been met. Consequently, the application for eviction and vacant possession fails.
Court Disposition
application dismissed with costs to the plaintiffs
Orders
- The Defendants' Notice of Motion application dated 30th March 2016 is dismissed.
- Costs of the application are awarded to the Plaintiffs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC NO. 575 OF 2008
PETER GITHIIYI WANJIRU…..….….…. 1STPLAINTIFF
JOHN KINYANJUI KINUTHIA……........2ND PLAINTIFF
JOSEPH KARARA KINUTHIA…..…….3RD PLAINTIFF
NENE BENSON GITHIIYI……………….4TH PLAINTIFF
VERSUS
KIOI GITHIIYI………………………......1ST DEFENDANT
GEORGE GITHIIYI KIOI……………….2ND DEFENDANT
RULING
What is before me is an application brought by way of Notice of Motion dated 30th March 2016 in which the Defendants have sought vacant possession and eviction of the Plaintiffs from L.R No. Githunguri/Githiga/T.326 (“the suit property”). The application has been brought on the grounds that the Plaintiffs suit is res judicata and that the Plaintiffs are trespassers on the suit property.
I have considered the Defendants’ application together with the affidavit filed in support thereof. I have also considered the replying affidavit sworn by the 1stDefendant and the submissions which were made before me by the Defendants’ advocate. I am of the view that the Defendants’ application has no merit and must fail. I am not persuaded that this suit is res judicata. Kiambu Civil Suit No. 505 of 1993 was brought by the 1st Plaintiff in his personal capacity and he sought an order for the transfer of the suit property to his name. That suit was not heard on merit. The same was struck out on a preliminary objection. The present suit has been brought by four Plaintiffs three of whom were not parties to Kiambu Civil Suit No. 505 of 1993. The Plaintiffs have brought the present suit in their capacity as the administrators and beneficiaries of the estate of one, Mary WanjiruGithiiyi (deceased). I am not persuaded that the issues raised in this suit were directly and substantially in issue in the Kiambu Civil Suit No. 505 of 1993 or that the parties in this suit are the same as those who were in Kiambu Civil Suit No. 505 of 1993. For the foregoing reasons, I am of the opinion that the conditions for a plea of res judicata have not been met by the Defendants.
The upshot of the foregoing is that the Defendants’ Notice of Motion application dated 30th March 2016 fails wholly and is dismissed with costs to the Plaintiffs.
Delivered and Dated at Nairobi this 27th day of June, 2017
S. OKONG’O
JUDGE
In the presence of
N/A for the 1st Plaintiff
N/A for the 2nd Plaintiff
N/A for the 3rd Plaintiff
N/A for the 4th Plaintiff
N/A for the 1st Defendant
Mr. Omolo for the 2nd Defendant
Kajuju Court Assistant