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Court of AppealDismissedCivil Appeal No. 8 of 2016

Mary Igandu Kigotho v Michael Wang’ombe Gititu [2018] KECA 464 (KLR)

Court of Appeal of Kenya
6 June 2018
PWP. WakiFSF. SichaleSKS. ole Kantai
2,361 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a widow cannot re-litigate land her late husband already lost; earlier judgments bind family members claiming through him.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Waki, Sichale and ole Kantai, JJ.A.) dismissed an appeal against a ruling of Waithaka, J. of the Environment and Land Court at Nyeri dated 24th September 2015, which had dismissed both a notice of motion seeking an injunction and the originating summons underlying it. The appellant, Mary Igandu Kigotho, had sought to be registered as absolute proprietor of land parcel MAGUTU/GATEI/875 by adverse possession, asserting occupation since 1974. The respondent opposed the claim on the ground that the same land had been the subject of Nyeri CM Award No. 65 of 1999 between him and the appellant's late husband, Kigotho Kariithi, who lost and against whom eviction orders were later issued. The appellant argued that she was not a party to the earlier suit and was litigating in her own right. Applying Section 7 of the Civil Procedure Act, the Court held that the elements of res judicata are conjunctive and that the statute bars suits by parties under whom a claimant claims and litigating under the same title. It saw through what it called the appellant's ingenuity in suing in her own capacity, describing it as a clear attempt to evade the doctrine of res judicata. Relying on its own decision in Kenya Commercial Bank v Benjoh Amalgamated and on IEBC v Maina Kiai (quoting the Indian Supreme Court in Lal Chand v Radha Kishan), the Court affirmed that res judicata is a jurisdictional bar that cannot be circumvented even by consent. The Court also held that the trial judge's determination of the originating summons together with the motion occasioned no prejudice, since both raised the same res judicata issue and the parties had agreed to dispose of the matter by submissions. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's originating summons claiming adverse possession was res judicata in light of Nyeri CM Award No. 65 of 1999 between the respondent and the appellant's late husband
  2. 2.Whether the trial judge erred in determining the originating summons together with the notice of motion for injunction

Key legal issues

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01

Whether a suit by a widow in her own right, over land litigated and lost by her late husband, is res judicata

Holding

It does not matter that the appellant was not a party to the earlier suit or that she sued in her own capacity; as a person claiming under a party to the former suit, her suit was barred by Section 7 of the Civil Procedure Act.

Reasoning

The court applied Section 7 of the Civil Procedure Act, which extends res judicata to parties under whom a claimant claims and litigating under the same title. The suit land was directly and substantially in issue in Nyeri CM Award No. 65 of 1999 between the respondent and the appellant's late husband, a competent court heard and determined it, and the appellant, litigating as the widow of the losing party, was attempting to evade the doctrine. The trial judge's conclusion was properly grounded in law.

p. 3
02

Whether the trial judge erred in determining the originating summons together with the notice of motion

Holding

No error: the issue in both the motion and the originating summons was res judicata, the parties by consent agreed to determine the matter by submissions, and no prejudice was occasioned.

Reasoning

The court noted that although the trial judge made no formal order consolidating the motion and the originating summons, both raised the identical issue of res judicata, the parties agreed on 11th February 2015 to determine the application by submissions, and the appellant's counsel raised no objection. The court held that the procedure occasioned the appellant no prejudice, so the complaint was of no consequence.

p. 4

Legal principles established

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  • The elements of res judicata under Section 7 of the Civil Procedure Act are conjunctive and must all be present before a suit is barred; the bar binds persons claiming under a party to the former suit, even if they litigate in their own capacity.
  • The doctrine of res judicata operates as a jurisdictional bar that a court cannot entertain even by consent of the parties.

Court orders

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  1. 1.The appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
FS
majority
SK
majority
On appeal from
High Court of Kenya, Environment and Land Court at Nyeri
ELC No. 66 of 2014 (OS)
Jurisdiction invoked
First appellate appeal from the High Court under the Court of Appeal's appellate jurisdiction (Civil Appeal No. 8 of 2016)

Relief refused

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The appellant's appeal against dismissal of her injunction application and adverse possession originating summons

The suit was res judicata and determining the motion and originating summons together occasioned no prejudice

p. 4

Costs

The appeal is dismissed with costs (to the respondent).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the above is that we find no merit in this appeal. It is dismissed with costs.
p. 4Final orders - dismissal of appeal
The elements of res judicata have been held to be conjunctive rather than disjunctive.
p. 3Conjunctive elements of res judicata
This was a clear attempt to evade the doctrine of res judicata. Like the trial judge, we are of the view that the suit between the appellant and the respondent was res judicata.
p. 3Suit by widow in her own capacity barred by res judicata
The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end.
p. 3Public interest rationale of res judicata

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, "Mary Igandu Kigotho v Michael Wang’ombe Gititu [2018] KECA 464 (KLR)", Case Analysis (2018). Civil Appeal No. 8 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/464/eng@2018-06-06

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