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Court of AppealDismissedCivil Appeal No. 192 of 2014· [2017] KECA 471 (KLR)

Grace Waithera Muniu v Teresia Wainana & another [2017] KECA 471 (KLR)

Court of Appeal
23 June 2017
3,803 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 dismissed a land appeal filed 11 days late without leave, confirming you cannot relitigate a dispute already decided by an arbitral award.

What this practically means

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Executive summary

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The appellant, as administrator of her late husband's estate, sued the respondents in ELC No. 635 of 2013 seeking a permanent injunction and mandatory orders over LR Dagoretti/Kangemi/T.341 after they allegedly destroyed property on the land. Githumbi J upheld a preliminary objection and dismissed the suit as res judicata on 22nd November 2013, holding that the same ownership dispute had been determined in HCCC No. 662 of 1989 (OS), where the parties by consent referred the matter to a panel of elders whose 1992 award allocated the plot in equal shares. The appellant's application to set aside the award was dismissed by Osiemo J on 26th June 2008, with leave to appeal granted. The Court of Appeal (Koome, Okwengu & Kiage, JJ.A) dismissed the appeal on 23rd June 2017 on two independent grounds. First, the appeal was filed out of time without leave: time ran from collection of certified proceedings on 14th May 2014 and lapsed on 14th July 2014, yet the appeal was lodged on 25th July 2014 with no explanation for the delay, and Article 159 and the overriding objective could not cure the resulting want of jurisdiction. Secondly, on the merits, the Court affirmed that all three res judicata conditions were satisfied, holding that the grant of leave to appeal under Order 46 Rule 18(1)(c) froze adoption of the arbitral award, so the appellant could not claim the award had lapsed, and no prayer sought to declare the award void for passage of time. The appellant was adjudged to be seeking a second bite at the same cherry. The appeal was dismissed with costs to the respondents. This judgment now binds subordinate courts and the High Court on both the competency rule and the res judicata analysis.

Key legal issues

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01

Competency of an appeal filed out of time without leave

Holding

The appeal was filed outside the 60 days in Rule 82(1) after proceedings were collected on 14th May 2014, with no explanation for the delay and no application for extension of time, rendering it incompetent and ousting jurisdiction.

Reasoning

Time began running when certified proceedings were collected on 14th May 2014, lapsing on 14th July 2014; the appeal was lodged on 25th July 2014. Even though a certificate of delay was obtained on 11th June 2014, counsel had nearly 30 days to file within time. No replying affidavit or explanation was offered. Although Sections 1A and 1B of the Appellate Jurisdiction Act and Article 159 permit overlooking technicalities, a proper appeal filed within time or with leave is the premise of jurisdiction; without it the court cannot entertain the appeal.

p. 4
02

Whether ELC No. 635 of 2013 was res judicata

Holding

Yes. The three conditions were met: the suit property and ownership issue were directly in issue in HCCC No. 662 of 1989 (OS), the parties were the same or claimed under the same title, and the matter was finally decided through a consent arbitration whose award, following dismissal of the application to set it aside, stood.

Reasoning

Both suits concerned Dagoretti/Kangemi/T.341. The former suit was by consent referred to a panel of elders whose award of 14th June 1992 allocated the plot in equal shares. The application to set aside the award was dismissed by Osiemo J on 26th June 2008, with leave to appeal granted. Under Order 46 Rule 18(1)(c), the pending intended appeal froze entry of judgment on the award; the appellant, having failed to prosecute that appeal, could not claim the award lapsed, nor did the later suit even seek a declaration that the award was void for lapse of time.

p. 6
03

Whether a new cause of action arose from the respondents' threatened demolition

Holding

No. The threatened demolition did not create a fresh cause of action capable of escaping the res judicata bar; the ownership dispute was the same as in the former suit.

Reasoning

The claim in ELC No. 635 of 2013 sought injunction and vacation orders over the same suit property, based on the same competing ownership claims already determined through the arbitration award in HCCC No. 662 of 1989 (OS). The appellant was 'trying to have a second bite of the same cherry' while withholding disclosure that she had obtained leave to appeal against the refusal to set aside the award. Filing a different suit seeking the same orders touching on occupation of the property was an abuse of court process.

p. 6
04

Whether the arbitral award lapsed after not being adopted as a judgment of the court within 12 years

Holding

No. Entry of judgment on the award was lawfully withheld because the appellant had been granted leave to appeal against the dismissal of her application to set aside the award; the failure to prosecute that appeal froze implementation, and she cannot rely on that delay.

Reasoning

Under Order 46 Rule 18(1)(c), the court enters judgment on an award when an application to set it aside has been heard and no leave to appeal against the refusal is granted within 14 days. Here leave was sought and granted, so the same High Court could not adopt the award until the appeal was out of the way. Moreover, the subsequent suit contained no prayer to declare the award void and unenforceable for passage of time, the appellant approbating and reprobating at the same time.

p. 6

Legal principles established

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  • An appeal filed out of the sixty days prescribed by Rule 82(1) without leave of the court is incompetent, and the overarching objectives in the administration of justice cannot cure the want of jurisdiction arising from a properly instituted appeal.
  • Where an application to set aside an arbitral award is dismissed and leave to appeal is granted under Order 46 Rule 18(1)(c), entry of judgment on the award is stayed; a party who fails to prosecute that appeal cannot later claim the award has lapsed, and a fresh suit over the same subject matter is res judicata.
  • The doctrine of res judicata under Section 7 of the Civil Procedure Act requires: the matter directly or substantially in issue in both suits, the same parties or those litigating under the same title, and final determination of the previous suit.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents.

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 46 Rule 18 (1) (c)
  • Limitation of Actions ActSection 10
  • Limitation of Actions ActSections 13 and 38
  • Appellate Jurisdiction ActSections 1A and 1B
  • Constitution of KenyaArticle 159
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 82 (1)
  • Court of Appeal RulesRule 115

Cases cited (4)

  • NGUYAI Versus NGUNAYU (1985) KLR
    (1985) KLR Pages 606 to 617
  • Selle vs. Associated Motor Boat Company
    (1968) E.A. 123
  • Jivanji vs. Sanyo Electrical Company Ltd.
    (2003) KLR 425
  • Uhuru Highway Development Ltd Vs Central Bank & 2 Others
    Civil Appeal No. 36 of 1996
On appeal from
High Court of Kenya at Nairobi
High Court Milimani ELC No. 635 of 2013
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act (first appeal from High Court ruling); Court of Appeal Rules Rules 82(1) and 84

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Grace Waithera Muniu v Teresia Wainana & another [2017] KECA 471 (KLR)", Case Analysis (2017). Civil Appeal No. 192 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/471/eng@2017-06-23

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