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Court of AppealDismissedCivil Appeal No 135 of 2018· [2021] KECA 212 (KLR)

Ogaro v Naset & another (Civil Appeal 135 of 2018) [2021] KECA 212 (KLR)

Court of Appeal of Kenya
5 November 2021
SKS. ole KANTAIHOH. A. OMONDIMUMUMBI-NGUGI
3,039 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot revive a settled land dispute by filing a new suit with declaratory orders attached.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Nairobi on 5th November 2021 by ole Kantai, Omondi and Mumbi-Ngugi JJA, upheld the Environment and Land Court at Kitale's decision of 20th December 2017 dismissing the appellant's suit as res judicata. The appellant sought declaratory orders that he was the lawful owner of a 50ft x 100ft plot on Namanjalala Farm L.R. No. 2048 and that the Kwanza Land Disputes Tribunal award adopted in Kitale SPMCC Land Case No. 63 of 2000 was a nullity for breach of natural justice, having been made without notice to him. The Court framed a sole issue: whether the trial court was correct in finding the suit res judicata. Applying section 7 of the Civil Procedure Act and its earlier decisions on the elements of res judicata, the Court found the ownership dispute had been litigated before the Tribunal and finally determined; the appellant claimed under the 2nd respondent, who had participated in the Tribunal proceedings; and the same natural-justice complaint had been raised and dismissed in the appellant's own appeal, HCCA No. 10 of 2004. The Court held that a fresh suit dressed as one seeking declaratory orders over previously litigated subject matter was an abuse of process. The appeal was dismissed with costs to the 1st respondent. The binding proposition for lower courts is that a claimant under a party to earlier litigation cannot relitigate the same issues, and that the inclusion of declaratory orders does not escape the res judicata bar.

Key legal issues

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01

Whether the appellant's suit was res judicata notwithstanding that he was not a named party to the Land Disputes Tribunal proceedings

Holding

The suit was res judicata: the ownership dispute was previously litigated before the Tribunal and adopted as a court order, and the appellant claimed under the 2nd respondent who had participated.

Reasoning

Applying section 7 of the Civil Procedure Act, the court found that the ownership of the suit property was the subject of the Tribunal proceedings and the subsequent adoption in SPMCC Land Case No. 63 of 2000. The 2nd respondent, under whom the appellant claimed, participated in the Tribunal proceedings. The same natural-justice issue raised in the suit had been determined in the appellant's own appeal HCCA No. 10 of 2004, which was heard on its merits and dismissed. Re-litigating the same subject matter in a suit dressed up with declaratory orders constituted an abuse of process.

p. 5

Legal principles established

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  • Section 7 of the Civil Procedure Act bars a court from trying any suit or issue directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title, in a competent court, where that issue was heard and finally decided.
  • A party claiming under another is bound by the litigation in which that other participated; a claimant cannot relitigate, even by adding a claim for declaratory orders, matters already litigated by those under whom he claims.
  • Framing a fresh suit as one seeking declaratory orders does not escape the res judicata bar where the subject matter was previously determined.

Court orders

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  1. 1.Dismissal of the appeal as devoid of merit
  2. 2.Costs of the appeal awarded to the 1st respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Dispute Tribunal Act Cap 303A Laws of KenyaSection 3(1)
  • Land Dispute Tribunal Act Cap 303A Laws of KenyaSection 4(2)

Cases cited (3)

  • Njue Ngai vs Ephantus Njiru Ngai & another
    [2016] eKLR
  • Alka Roshanlal Harbanslal Sharma & another v Theresa Constabir
    [2020] eKLR
  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
On appeal from
Environment and Land Court, Kitale
Not stated in the judgment
Jurisdiction invoked
First appellate appeal from the Environment and Land Court under the Court of Appeal's appellate jurisdiction (specific provision not stated 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, "Ogaro v Naset & another (Civil Appeal 135 of 2018) [2021] KECA 212 (KLR)", Case Analysis (2021). Civil Appeal No 135 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/212/eng@2021-11-05

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