John Michael Wanjao v George Kimetto & 2 Others [2014] KEELC 479 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a land dispute because it re-fought a case already decided, adding new parties to disguise the repeat.
What this practically means
#Executive summary
#Key legal issues
#Whether the present suit is res judicata
Yes - the issues, though framed in fraud rather than contract, could and ought to have been raised in the former suit and the suit is res judicata
The court compared the plaints in both suits and found the same subject matter and substratum. Although the earlier suit was struck out on interlocutory application under Section 3(3) of the Law of Contract Act, the court there determined the issues. Explanation 4 to Section 7 deems matters that might and ought to have been raised to have been in issue. The fraud plea could have been pleaded in the former suit without being mutually destructive of the contract plea, and adding two parties did not disguise the re-litigation.
Whether prior determination on an interlocutory application satisfies 'heard and finally decided'
Yes - full trial is not necessary for issues to be determined
The court held that where issues are determined through an application, the matter is settled; it matters not that no full trial occurred. The question whether the plaintiff could enforce a verbal contract was actually determined by Azangalala J in the ruling of 16 November 2011 striking out the former suit.
Effect of differing parties between the two suits
Parties differing by additional defendants does not defeat res judicata where the substratum is the same
The court reasoned that permitting a plaintiff to escape res judicata by adding parties would be a cheeky attempt to disguise the latter matter as a different one, defeating the mischief of the doctrine. No cause of action against the 1st and 3rd defendants could be sustained independently of the 2nd defendant.
Legal principles established
#- A suit need not go to full trial for res judicata to apply; issues determined through an interlocutory application are settled for purposes of Section 7 of the Civil Procedure Act
- Under Explanation 4 to Section 7 of the Civil Procedure Act, a matter which might and ought to have been raised in the former suit is deemed directly and substantially in issue in that suit
- Res judicata is not defeated by the mischievous addition of parties to a subsequent suit
Court orders
#- 1.The suit against the 2nd defendant is dismissed as sought in the application
- 2.The entire suit is dismissed because the substratum of the suit collapses without the 2nd defendant
- 3.Costs of the suit awarded to the defendants
- Jurisdiction invoked
- Environment and Land Court jurisdiction; Civil Procedure Act, Sections 7 and 8 (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Michael Wanjao v George Kimetto & 2 Others [2014] KEELC 479 (KLR)", Case Analysis (2014). Eldoret HCCC (ELC) suit re Eldoret Municipality Block 9/2749 - application dated 7 August 2013 (former suit: Eldoret HCCC No. 134 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/479/eng@2014-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.