Michael Bett Siror v Jackson Koech [2019] KECA 941 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a land suit dismissed for want of prosecution can't be barred as res judicata, but critical issues must be decided at a full trial.
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 appeal was incompetent for want of a certified copy of the order appealed from under Rule 87(1)(h) of the Court of Appeal Rules
- 2.Whether the trial judge erred in dismissing the appellant's application to strike out the plaint
- 3.Whether the respondent's suit was res judicata or an abuse of court process given previous suits between the parties
- 4.Whether the suit was barred for want of Land Control Board consent
- 5.Whether the suit was statute barred under the Limitation of Actions Act
- 6.Whether the trial judge made premature and prejudicial conclusive findings at the interlocutory stage
Key legal issues
#Effect of prior dismissal for want of prosecution on res judicata
Dismissal for want of prosecution is a technical knockout and does not amount to a final determination of the issues for purposes of section 7 of the Civil Procedure Act.
Res judicata requires that the matter directly and substantially in issue was heard and finally decided by a competent court. The previous suits between the parties were either dismissed for want of prosecution or withdrawn; none was fully argued or finally determined on its merits. The judge ought to have addressed whether the previous suits involved the same issues and whether those issues were finally determined, and given the contentious nature of the plea, it required full investigation at trial in this longstanding land dispute.
Prematurity of conclusive findings on a striking-out application
It was erroneous for the trial judge to make conclusive findings on the Land Control Board consent and limitation at the interlocutory stage, and those findings were ordered expunged.
A striking-out motion is interlocutory, decided on affidavit evidence without the benefit of full evidence or cross-examination. The judge made conclusive findings that the Land Control Board consent was obtained and that the claim was not time barred, without hearing evidence or addressing section 8 of the Land Control Act on the timing of consent applications. Such crucial issues of law must be determined by the trial court on the evidence after a full trial.
Caution in exercising the power to strike out pleadings
The trial judge properly declined to strike out the suit, applying the D.T. Dobie principle that a suit should not be summarily dismissed unless it is plainly and obviously hopeless.
Order 2 Rule 15 confers a discretion to strike out scandalous, frivolous or vexatious pleadings, those causing delay or prejudice, and abuses of process. Following the locus classicus D.T. Dobie & Company (Kenya) Limited v Muchina, the court must act cautiously, without embarking on a trial of the facts, and a suit showing a mere semblance of a cause of action curable by amendment should go forward. The judge properly guided himself and the motion was properly dismissed.
Legal principles established
#- A dismissal of a suit for want of prosecution or non-attendance, though it may amount to a judgment, does not satisfy section 7 of the Civil Procedure Act for res judicata because the issues were not heard and finally determined.
- An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself or the decision is clearly wrong resulting in misjustice.
- Issues of limitation, res judicata and Land Control Board consent should not be determined conclusively on affidavit evidence at the interlocutory stage of striking out, but on evidence after a full trial.
- A party who fails to raise an objection to the competence of an appeal by application under Rule 84 is estopped under Rule 104(2) from raising it later, and cannot ask the court to act suo motu.
Court orders
#- 1.The respondent's objection to the competence of the appeal is overruled
- 2.The finding that the respondent's suit was not for striking out is upheld and the dismissal of the appellant's motion affirmed
- 3.The trial judge's conclusive findings regarding the obtaining of the Land Control Board Consent and the issue of limitation are expunged from the record
- 4.The respondent's suit be fully heard by a judge other than Obaga J
- 5.The trial judge be at liberty to determine all issues of fact and law raised in the pleadings, including limitation, res judicata, and the Land Control Board Consent
- 6.The costs of this appeal shall be costs at the trial
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- ELC. Case No. 96 of 2015
- Jurisdiction invoked
- First appeal / appeal as of right from the High Court under the Court of Appeal's appellate jurisdiction (Court of Appeal Rules; Constitution Article 164)
Relief refused
#Striking out of the respondent's plaint and dismissal of the suit
The remedy of striking out was inappropriate; the issues were contentious and required full investigation at trial
Application of the doctrine of res judicata to bar the suit
Previous suits were dismissed for want of prosecution or withdrawn and were not finally determined on the merits
Costs
The costs of this appeal shall be costs at the trial.
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 accept that dismissal of a suit for non-attendance or for want of prosecution can amount to a judgment, however, such a judgment does not satisfy the requirements of section 7 of the Civil Procedure Act, as the issues raised in the suit has not been addressed and finally determined by the court, but the judgment is the result of what may be described as a technical knockout.
It was premature and prejudicial for the court to determine such crucial issues on the basis of affidavit evidence without the benefit of hearing the suit or having the affidavit evidence tested through cross examination.
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.
We order that these findings be expunged from the record, and that the respondent's suit be fully heard by a judge other than Obaga J, and that the judge be at liberty to determine all the issues both of fact and law, raised in the pleadings, including the issue of limitation, res judicata, and the Land Control Board Consent.
The costs of this appeal shall be costs at the trial.
Issues in the judgment
#The judgment refers inconsistently to the number of a previous suit, which the appellant described as HCCC No. 2028 of 1998 in his narrative but as HCCC No. 2028 of 1988 in submissions.
The judgment refers to both Kitale HCCC No. 136 of 2000 and Kitale HCCC No. 129 of 2001 in the submissions passage, while the narrative mentions only HCCC No. 136 of 2000 Kitale as withdrawn, leaving the record of the previous suits unclear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Bett Siror v Jackson Koech [2019] KECA 941 (KLR)", Case Analysis (2019). Civil Appeal No. 53 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/941/eng@2019-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.