[2018] KEELC 3746 (KLR)
The court found that the present suit involved the same parties and subject matter as Narok PMCC No. 1 of 2007, in which judgment had already been delivered. Instead of appealing the previous decision, the plaintiff filed a fresh suit, which is prohibited by the doctrine of res judicata as codified in section 7 of...
Source-derived case information.
- Citation
- [2018] KEELC 3746 (KLR)
- Parties
- Plaintiff: Samuel K. Ngerechi; Plaintiff: Richard K. Bosek; Plaintiff: Wilson K. Sang; Plaintiff: Joseph Mosonik; Defendant: District Land Registrar of Narok; Defendant: Jospeh Kipkoech Ngerechi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 418 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection sustained; suit struck out with costs
- Judges
- MN Kullow
- Legal Topics
- Res Judicata, Striking Out Suit, Preliminary Objection, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel K. Ngerechi
Plaintiff
Richard K. Bosek
Plaintiff
Wilson K. Sang
Plaintiff
Joseph Mosonik
Plaintiff
District Land Registrar of Narok
Defendant
Jospeh Kipkoech Ngerechi
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata under section 7 of the Civil Procedure Act.
- 2 Whether the plaintiff had authority to swear affidavits and pleadings on behalf of other plaintiffs.
- 3 Whether the suit should be struck out for being an abuse of court process.
Ratio Decidendi
The court found that the present suit involved the same parties and subject matter as Narok PMCC No. 1 of 2007, in which judgment had already been delivered. Instead of appealing the previous decision, the plaintiff filed a fresh suit, which is prohibited by the doctrine of res judicata as codified in section 7 of the Civil Procedure Act. The court held that the matter had been effectively determined between the parties and that the current suit was an attempt to relitigate issues already decided. Consequently, the court sustained the preliminary objection and struck out the suit with costs, finding no need to address the other grounds raised in the objection.
Court Disposition
preliminary objection sustained; suit struck out with costs
Orders
- The preliminary objection is sustained.
- The plaintiff's suit is struck out with costs to the 2nd respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 418 OF 2017
FORMERLY NAKURU ELC CAUSE NO. 20 OF 2016
SAMUEL K. NGERECHI...........................................1ST PLAINTIFF
RICHARD K. BOSEK................................................2ND PLAINTIFF
WILSON K.SANG.......................................................3RD PLAINTIFF
JOSEPH MOSONIK...................................................4TH PLAINTIFF
-VERSUS-
DISTRICT LAND REGISTRAR OF NAROK.....1ST DEFENDANT
JOSPEH KIPKOECH NGERECHI......................2ND DEFENDANT
RULING
The Application before me is for consideration on the 2nd Respondents Notice of Preliminary Objection dated 10th March, 2016 where the 2nd Respondent seeks to have the entire suit struck out. The 2nd Respondent contends that the Plaintiff does not have the authority to swear affidavit and other pleadings on behalf of the other plaintiffs. He further contends that the entire suit is resjudicata and that the plaintiff should not be allowed to revive a suit that has been decided.
When the matter came before me for hearing parties agreed that the same shall be disposed off by way of written submissions. The Respondent filed their submissions but the Plaintiffs/Applicants have declined to do so.
It is the Respondents contention that the suit herein was heard and determined and judgement delivered on 28/4/15 and that upon the same the 1st Plaintiff was granted stay for a period of 30 days.
I have read the Preliminary Objection and the submissions filed and the original pleadings. A matter is resjudicata when the matter was effectively determined as between the parties as per the provisions of section 7 of the Civil Procedure Act. In the instant case there was a suit that was Narok PMCC No. 1 of 2007 which involved the same parties and on the same subject. In the said case the court delivered its judgement. The Plaintiff in the instant case rather than Appeal against the said decision filed the instant suit and I therefore find that the suit herein is resjudicata.
I will not address the other grounds of the Preliminary Objection since the above finding determines the entire suit.
The upshot of the above is that I will sustain the Preliminary Objection and I order that the plaintiff’s suit be struck out with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 18th day of APRIL, 2018
MOHAMMED NOOR KULLOW
JUDGE
18/4/2018
In the presence of:
Ms Cheptoo for the 2nd Respondent
N/A for the Plaintiff
CA:Chuma
MOHAMMED NOOR KULLOW
JUDGE
18/4/2018