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Court of AppealPartially AllowedCivil Appeal (Nakuru), judgment dated 27 January 1989· [1989] KECA 54 (KLR)

Ngugi v Kinyanjui and 3 others [1989] KECA 54 (KLR)

Court of Appeal of Kenya
27 January 1989
3,328 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a finally decided land dispute cannot be reopened—even by arbitration—so the owner regained his plot with costs.

What this practically means

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Executive summary

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This unanimous Court of Appeal judgment at Nakuru (Gachuhi, Apaloo and Gicheru Ag JJ A) allowed the appellant's second appeal, in substance, against a High Court ruling (Omolo Ag J, HCCC No. 73 of 1984) which had declined to hear his application to strike out the respondents' defences and instead referred the dispute to arbitration by the Provincial Commissioner, later entering judgment in terms of the arbitrator's award. The respondents, the appellant's father and brothers, occupied his 26-acre plot in the Gilgil West Settlement Scheme and defended his eviction suit by re-asserting a trust claim that Kneller J had dismissed in Nairobi HCCC No. 697 of 1974, a judgment never appealed. The Court held that ownership was res judicata under section 7 of the Civil Procedure Act, and that a court cannot circumvent that mandatory bar by remitting the concluded issue to arbitration, even with the parties' consent; the reference and judgment on the award were therefore a nullity that reversed the 1974 judgment 'by the back door'. Relying on section 27 of the Registered Land Act, the Court held the respondents, having set up adverse title and been defeated, forfeited their licence to remain. Judgment was entered for the appellant for eviction and a perpetual injunction, with mesne profits at Shs 40 per acre per year from filing of suit, time to vacate until the end of March 1989, and costs of the appeal and below to the appellant. The decision binds subordinate courts on the finality of res judicata and the limits of consensual arbitration references.

Key legal issues

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01

Res judicata under section 7 of the Civil Procedure Act

Holding

The ownership of Plot 49 had been directly and substantially in issue and finally decided between the same parties in Nairobi HCCC No. 697 of 1974, so the respondents' defences raising ownership were res judicata.

Reasoning

The subject matter (the same 26-acre plot), the parties (appellant on one side, father and brothers on the other, merely with roles reversed), and the question of who financed the purchase were all raised and decided in the 1974 action before Kneller J. That judgment was never appealed and stood unvacated, finally settling ownership in the appellant's favour under section 7 of the Civil Procedure Act.

p. 4
02

Referral of a res judicata matter to arbitration

Holding

The judge erred in referring the concluded issue to arbitration and in entering judgment on the award; the reference and everything that followed were a nullity.

Reasoning

Section 7 of the Civil Procedure Act forbids any court from trying an issue already finally decided between the same parties. That statutory bar cannot be circumvented by remitting the same issue to arbitration, whether by consent or otherwise. The arbitrator's attempted re-opening of ownership sought to nullify the unappealed 1974 High Court judgment by the back door.

p. 2
03

Failure to hear the striking-out application

Holding

The judge erred in not hearing the motion to strike out the defences, in which res judicata had been raised as a point of law.

Reasoning

Res judicata is a pure point of law under section 7 of the Civil Procedure Act that the judge was bound to determine; having been expressly raised in the appellant's affidavit, the judge could not decline to rule on it and instead refer the matter to arbitration. Once the defences were struck out, judgment would follow on the plaint.

p. 2
04

Entitlement to eviction, injunction and mesne profits

Holding

The respondents, having occupied under the appellant's licence but then set up adverse title and been defeated, forfeited their right to remain; the appellant was entitled to eviction, a perpetual injunction and mesne profits of Shs 40 per acre per year from the date of filing suit.

Reasoning

Section 27 of the Registered Land Act vested absolute ownership and exclusive occupation rights in the appellant as registered proprietor. Occupation by licence ended when the licensees disputed ownership and went to law unsuccessfully. Mesne profits were awarded at the claimed rate but from filing of suit rather than 1974.

p. 5

Legal principles established

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  • Once a competent court has finally decided a matter and the decision is not set aside or appealed, the dispute cannot be reopened between the same parties or their privies; it binds all inferior courts, tribunals and the same court.
  • A court cannot circumvent the statutory bar in section 7 of the Civil Procedure Act against re-trying an issue already finally decided by remitting that issue to arbitration, even with the parties' consent.
  • A licensee who sets up title adverse to the registered proprietor and litigates against him forfeits the right to remain in occupation and may be evicted.
  • The res judicata doctrine applies notwithstanding that the parties changed roles (defendant in the earlier suit, plaintiff in the later one).

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment entered for the plaintiff/appellant for eviction and perpetual injunction as prayed in the plaint
  3. 3.Mesne profits awarded at Shs 40 per acre per year from the date of filing suit until the date of possession
  4. 4.Respondents given time up to the end of March 1989 (March 31, 1989) to vacate the land or agree terms to attorn as tenants; failing agreement, eviction to issue any time after that date
  5. 5.Respondents not to plant any more crops on the land
  6. 6.Appellant awarded costs of the appeal and of the proceedings in the High Court
On appeal from
High Court of Kenya at Nakuru
HCCC No. 73 of 1984
Jurisdiction invoked
First appeal to the Court of Appeal against the ruling/orders of the High Court at Nakuru (statutory appellate jurisdiction under the constitution and Court of Appeal statute; no specific article cited in the judgment)

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, "Ngugi v Kinyanjui and 3 others [1989] KECA 54 (KLR)", Case Analysis (1989). Civil Appeal (Nakuru), judgment dated 27 January 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/54/eng@1989-01-27

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