Evanson Gachie Kariuki & 2 others v Francis Kariuki Wachira & another [2019] KECA 490 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a land suit alleging fraud cannot be thrown out as repetitious when fraud was never actually decided in earlier cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the doctrine of res judicata applies to the pleadings and plaint filed by the appellants
- 2.Whether fraud and misrepresentation in the transfer and registration of the suit property, not having been in issue in the previous Succession Cause and Land Tribunal proceedings, can found a fresh suit
Key legal issues
#Whether res judicata barred the appellants' suit alleging fraudulent transfer and registration
Res judicata did not apply because fraud was not an issue before the Kikuyu Land Tribunal or in the High Court Succession Cause, and allegations of fraud cannot be dismissed summarily when they were not in issue in previous suits.
The Court examined the Tribunal proceedings and award, and found the Judge erred in dismissing the suit on res judicata without considering the Tribunal's recommendation pointing to an error in documentation. The Judge also erred in failing to call for and examine the alleged ruling of Ombija, J., which prima facie was relevant. Since fraud was not in issue in the earlier proceedings, it could not have been litigated there, and the doctrine of res judicata was inapplicable.
Pleading and proof of fraud
Fraud must be specifically pleaded, with particulars stated on the face of the pleading, and must be distinctly proved; it cannot be left to inference.
The Court endorsed the established rule as stated by Tunoi, JA in Vijay Morjaria, observing that fraud is proved largely by oral evidence tested through cross-examination. Because fraud was not before the Tribunal or the Succession Court, those fora could not determine it, which undermined the trial court's res judicata reasoning.
Legal principles established
#- Allegations of fraud cannot be dismissed summarily on the basis of res judicata where fraud was not in issue in the previous suits.
- Res judicata does not bar a fresh suit on a matter (such as fraud) that was not in issue and could not be determined in the earlier proceedings.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the Environment and Land Court dated 21st March 2014 set aside in entirety
- 3.Appellants' suit filed as ELC No. 654 of 2009 reinstated
- 4.Each party to bear its own costs in this appeal and before the Environment and Land Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi, Milimani Law Courts (Environment and Land Court)
- H.C ELC No. 654 of 2009
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over the High Court (Environment and Land Court) ruling
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We hereby allow the appeal and set aside in entirety the ruling of the Environment and Land Court dated 21st March 2014. The appellants suit filed as ELC No. 654 of 2009 be and is hereby reinstated. Each party to bear its own costs in this appeal and before the Environment and Land Court.
Further, the Judge erred in failing to consider that allegations of fraud cannot be dismissed summarily when the same was not in issue in previous suits.
The Judge ought to have called for and examined the alleged ruling by Ombija, J. which prima facie is relevant to the suit.
The philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end.
Issues in the judgment
#The judgment identifies the first respondent in the heading as Francis Kariuki Wachira but the defence narrative and submissions refer to the 1st respondent as Evanson Gachie Kariuki.
The judgment recites that the trial court struck out the appellants' suit but later states the suit was dismissed, without clarifying whether the order was striking out or dismissal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evanson Gachie Kariuki & 2 others v Francis Kariuki Wachira & another [2019] KECA 490 (KLR)", Case Analysis (2019). Civil Appeal No. 270 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/490/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.