Hamisi & another (Suing as the administrators of the Estate of the Late Hamisi Shaban Otinga - Deceased) v Shiraho & another (Suing in their capacity as the administrators of the Estate of the Late Richard Shiraho) (Civil Appeal 60 of 2020) [2025] KECA 539 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a land suit struck out as res judicata, ruling that when the underlying judgment is set aside on appeal, the basis for striking out collapses.
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 learned trial Judge exercised his discretion injudiciously in declining to review and set aside the ruling of 13th July 2016
- 2.Whether the appellants demonstrated sufficient cause for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
- 3.Whether the delay of three years in filing the application for review was sufficiently explained
Key legal issues
#Interference with the trial court's discretion on an application for review
The learned Judge misapprehended the facts and failed to apply his mind to crucial factors amounting to sufficient reason for review, warranting appellate interference.
At the time of the review application, two conflicting ELC decisions existed: the 13th July 2016 ruling upholding res judicata, and the 24th October 2017 judgment setting aside the underlying Winam SRMCC decision. The existence of the pending appeal was disclosed to the ELC at the hearing of the preliminary objection. The Judge also erred in holding the appellate judgment had no effect on the res judicata ruling, and contradicted himself in finding no review had been sought when the very application before him sought review.
Effect of setting aside an underlying judgment on a res judicata finding
A judgment on appeal setting aside the decision that founded a res judicata ruling destroys the basis of that ruling and cannot be dismissed as having no effect on it.
The ELC ruled in 2016 that the suit was res judicata because the Winam SRMCC No. 495 of 2004 decision bound the parties. That decision was later set aside on appeal in Kisumu ELC No. 4 of 2017. The Court held it was a factual and legal error to find the appellate judgment had no effect on the res judicata ruling, since it fundamentally altered and destroyed its basis.
Duty of a first appellate court
The Court, as a first appellate court, must reconsider the evidence, evaluate it and draw its own conclusions of fact and law, departing from trial findings only where not based on the record, founded on wrong principles, or injudiciously exercised discretion.
The Court reiterated the standard from Selle & Another v Associated Motor Boats Co. Ltd & Others, as qualified by Jabane v Olenja and Mbogo & Another v Shah, before assessing whether the trial Judge's discretion was exercised injudiciously.
Legal principles established
#- The Court of Appeal will only interfere with a discretionary decision on the established grounds: misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take account of relevant considerations, or where the decision is plainly wrong.
- A subsequent appellate judgment that sets aside an earlier judgment fundamentally alters and destroys the basis of a prior finding of res judicata founded on that judgment, and constitutes sufficient reason for review.
Court orders
#- 1.Set aside the ruling and orders of Ombwayo J. dated 20th December 2019 dismissing the application for review
- 2.Reinstated the appellants' suit in ELC at Kisumu Civil Case No 140 of 2015 for hearing on merit
- 3.Each party to bear their own costs of the application dated 8th March 2019 and of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kisumu
- Civil Case No 140 of 2015 (ruling of 20th December 2019)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Procedure Act)
Relief refused
#Costs of the application dated 8th March 2019 and of the appeal against the respondents
Given the circumstances giving rise to the appeal, the Court declined to award costs
Costs
Each party bears their own costs of the application dated 8th March 2019 and of this appeal.
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.
This appeal is therefore for allowing, and we accordingly hereby set aside the ruling and orders of Ombwayo J. dated 20th December 2019, with the result that the appellants' suit in the ELC at Kisumu, being Civil Case No 140 of 2015, is reinstated for hearing on merit.
we order that each party bears their own costs of the application dated 8th March 2019, and of this appeal.
the learned Judge did not apply his mind to crucial factors that provided suficient reason to review the orders made on13th July 2016, and misapprehended the facts giving rise to the appellants' application for review.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts;
it was also contradictory and in error to find that "upon the delivery of the ruling of res judicata on 13ᵗʰ July 2016, the Applicants neither applied for a review nor appealed the ruling", when the application that was the subject of that very ruling was seeking to review the ruling of 13th July 2016!
Issues in the judgment
#The judgment does not state the appeal number assigned to this appeal in the Court of Appeal; only the case title and originating suits are identified.
The judgment cites Jabane vs Olenja as (1968) KLR 661, the same year as the other East African Court of Appeal cases, which may be an internal citation error in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi & another (Suing as the administrators of the Estate of the Late Hamisi Shaban Otinga - Deceased) v Shiraho & another (Suing in their capacity as the administrators of the Estate of the Late Richard Shiraho) (Civil Appeal 60 of 2020) [2025] KECA 539 (KLR)", Case Analysis (2025). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/539/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.