Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No 77 of 2019· [2024] KECA 1276 (KLR)

Samoei v Kosgei & another (Civil Appeal 77 of 2019) [2024] KECA 1276 (KLR)

Court of Appeal
20 September 2024
SKS. Gatembu KairuFOF. OchiengWKW. Korir
3,988 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal ruled that an elders' land award adopted as a court judgment decades ago still binds the parties and blocks any new lawsuit over the same land.

What this practically means

#

Executive summary

#
This is a first appeal to the Court of Appeal against the judgment of A. Ombwayo J. of the Environment and Land Court at Eldoret, which dismissed the appellant's claim for eviction, injunction and mesne profits over LR No. Uasin Gishu/Tapsagoi Scheme/164 on the grounds of res judicata and an unknown procedure. The respondents had lived on the land since the 1970s; a family dispute over its ownership was resolved in the mid-1980s by a panel of elders before the District Officer, and the elders' award was adopted as the judgment of the Senior Resident Magistrate's Court in Eldoret S.R.M. Award Case No. 81 of 1986. The appellant argued that no valid decision existed because the award was made by a District Officer and not a Land Disputes Tribunal, the Land Disputes Tribunals Act not having come into force until 1993. The Court of Appeal agreed that the trial judge erred in relying on the Land Disputes Tribunals Act, but held that the governing law at the material time was section 9A of the repealed Magistrates' Courts Act, read with section 159 of the repealed Registered Land Act, under which referral of such land disputes to a panel of elders was mandatory and the adoption of the award as a court judgment was lawful. The Court further held that the 1987 award was a separate decision from the 1986 one and was properly adopted. Applying section 7 of the Civil Procedure Act and Supreme Court authority on res judicata, the Court found the appellant's suit barred, since trespass and eviction claims could not be determined without re-litigating ownership already conclusively decided. The appeal was accordingly dismissed, with each party bearing its own costs of the appeal, the Court departing from the ordinary rule that costs follow the event because the trial judge had relied on an Act not in force at the material time. This ruling binds subordinate courts and the Environment and Land Court on the validity of elders' awards adopted as judgments and the res judicata bar.

Key legal issues

#
01

Legality of the elders' award adopted as a judgment of the magistrate's court in 1988

Holding

The award was legal and valid because the applicable law at the time was section 9A of the repealed Magistrates' Courts Act, which required such land disputes to be referred to a panel of elders, read with section 159 of the repealed Registered Land Act

Reasoning

The Land Disputes Tribunals Act came into force only on 1st July 1993, after the dispute was determined. The court therefore corrected the trial judge's reliance on that Act, holding that the governing framework was section 159 of the Registered Land Act read with section 9A(2) of the Magistrates' Courts Act, under which referral to a panel of elders was mandatory and the subsequent adoption of the award as a court judgment was lawful.

p. 5
02

Whether the 1987 award, sent back for further deliberation in 1986, was available for adoption

Holding

The 1987 award constituted a separate decision from the 1986 one and was properly adopted as the judgment of the court

Reasoning

The 1986 award was returned to the elders because the appellant's husband requested that Arap Matutu testify; he failed to call him. When the second, similar award was filed in 1987, the magistrate adopted it. The court held the second award was a distinct decision notwithstanding the similarity, so the adoption on 8th April 1988 was legally sound.

p. 6
03

Whether the appellant's suit was barred by res judicata

Holding

Yes. All elements of res judicata were satisfied: a final judgment on the merits by a competent court, between the same parties, over the same subject matter and cause of action

Reasoning

Applying section 7 of the Civil Procedure Act and the Supreme Court's statement of the elements in John Florence Maritime Services, the court found the ownership dispute had been resolved in the earlier adopted award. The prayers in the new suit (trespass, eviction, mesne profits, injunction) could not be granted without re-litigating ownership already determined, so the trial judge's finding of res judicata was upheld.

p. 7
04

Costs of the appeal

Holding

Although costs ordinarily follow the event and the appeal was dismissed, the court departed from that norm because the trial judge erred in relying on the Land Disputes Tribunals Act

Reasoning

The appeal only partially succeeded to the extent that the trial judge applied an Act not in force at the material time. Although that partial success bore no fruits for the appellant, the court found it sufficient reason to order each party to bear its own costs of the appeal.

p. 7

Legal principles established

#
  • Where a land dispute is resolved through a panel of elders and the award is adopted as a judgment of a competent court, that judgment is valid and binds the parties, so a subsequent suit over the same property between the same parties is barred by res judicata
  • Res judicata bars a claim of trespass and eviction where ownership of the land was determined in earlier proceedings between the same parties by a court of competent jurisdiction

Court orders

#
  1. 1.A finding that the learned Judge erred in relying on the repealed Land Disputes Tribunals Act in determining the dispute
  2. 2.The holding of the trial court on the legality of the judgment in Eldoret S.R.M. Award Case No. 81 of 1986 is upheld
  3. 3.The finding of the trial court that the appellant's suit was res judicata is upheld
  4. 4.The appeal is dismissed with an order that the parties shall bear their own costs of the appeal

Authorities

#

Legislation

  • Land Disputes Tribunals ActCap 303A (repealed; came into force 1st July 1993)
  • Registered Land ActSection 159 (Cap 300, repealed)
  • Magistrates' Courts ActSection 9A (Cap 10, repealed)
  • Civil Procedure ActSection 7
  • Court of Appeal Rules, 2022Rule 31(1)(a)

Cases cited (5)

  • Abok James Odera T/A A.J Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Paul Muraya Kaguri v. Simon Mbaria Muchunu
    [2015] eKLR
  • Florence Nyaboke Machani v. Mogere Amose Ombui & 2 others
    [2014] eKLR
  • Kenya Commercial Bank Limited v. Muiri Coffee Estate Limited & Another
    [2016] eKLR
  • John Florence Maritime Services Limited & another v. Cabinet Secretary Transport & Infrastructure & 3 others
    [2021] KESC 39 (KLR) (Civ)
On appeal from
Environment and Land Court, Eldoret
Not stated in the judgment as provided
Jurisdiction invoked
First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samoei v Kosgei & another (Civil Appeal 77 of 2019) [2024] KECA 1276 (KLR)", Case Analysis (2024). Civil Appeal No 77 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1276/eng@2024-09-20

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