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ELCStruck OutNot stated on the face of the ruling (Kisii ELC suit, Notice of Motion dated 3rd November 2014)· [2015] KEELC 9 (KLR)

Elizabeth Osewe Suing on behalf of the Estate of Mishack Engweso Omolo) v Andronico Otieno Anindo & another [2015] KEELC 9 (KLR)

Environment and Land Court of Kenya at Kisii (High Court, as then constituted)
4 December 2015
3,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a widow's land suit because courts will not allow disputes already decided to be re-litigated.

What this practically means

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Executive summary

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This was a first-instance ruling on the 1st defendant's Notice of Motion dated 3rd November 2014 seeking to strike out the plaintiff's suit with costs. The plaintiff, widow and legal representative (ad litem) of Mishack Engweso Omulo, sought nullification of LR Nos. South Sakwa/Waware/1016 and 1017, their consolidation back into Plot No.34, excision of 1 acre for the 1st defendant and transfer of the remainder to herself. The 1st defendant relied on Kisii HCCC No. 91 of 1991, in which the High Court decreed him 2 acres of Plot No.34, executed by subdivision and registration of the suit property in his name in 2002, and on Kisii HCCC No. 106 of 2008, in which the court confirmed his ownership against the plaintiff's sons. He argued res judicata, limitation (a fraud claim arising in 2002 filed in 2014), lack of locus standi and abuse of process, contending the decree could only be challenged by appeal or under section 34 of the Civil Procedure Act. The plaintiff relied on Articles 159 and 50(1) of the Constitution, asserting she never participated in the prior suits and that technicalities should not defeat substantive justice. Applying the D.T. Dobie strike-out principles and section 7 of the Civil Procedure Act, the court held the suit res judicata, the plaintiff claiming under a party bound by the 1991 decree, and that issues she raised ought to have been raised in that suit. The suit was found frivolous, vexatious and an abuse of process, and was struck out with costs to the 1st defendant for both the application and the entire suit.

Key legal issues

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01

Res judicata and abuse of process

Holding

The suit is res judicata because the plaintiff, as legal representative of a deceased party to Kisii HCCC No. 91 of 1991, seeks to relitigate the entitlement to and subdivision of Plot No.34, issues conclusively determined by a court of competent jurisdiction and capable of challenge only by appeal or review.

Reasoning

The court traced the prior suits: HCCC No. 91 of 1991 decreed 2 acres of Plot No.34 to the 1st defendant, and HCCC No. 106 of 2008 confirmed his ownership of the resulting subdivision against the plaintiff's sons. The plaintiff's claim that the 1st defendant was entitled to only 1 acre was a matter that ought to have been raised in the 1991 suit. Being the deceased's legal representative, the plaintiff claims under a party bound by that decree and cannot re-open it by fresh suit.

p. 5
02

Whether to strike out the suit

Holding

The suit was struck out because it is res judicata, frivolous, vexatious and an abuse of process, and no amendment could cure it.

Reasoning

Applying the settled strike-out principles, the court held that a res judicata suit is without substance and groundless, causing the opposite party unnecessary anxiety and expense. Having exercised the requisite caution, the court found that no useful purpose would be served by a trial on the merits.

p. 5

Legal principles established

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  • Res judicata under section 7 of the Civil Procedure Act binds not only the same parties but also parties claiming under them, including legal representatives of deceased parties
  • No suit ought to be summarily dismissed unless it is hopeless, discloses no reasonable cause of action and is incurable by amendment (D.T. Dobie principle)
  • A matter which might and ought to have been made a ground of defence or attack in a former suit is deemed to have been directly and substantially in issue in that suit (Explanation 4 to section 7, Civil Procedure Act)
  • The plea of res judicata extends to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time
  • A suit which is res judicata is a frivolous and vexatious suit and an abuse of the process of the court

Court orders

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  1. 1.The 1st defendant's Notice of Motion dated 3rd November 2014 allowed as prayed
  2. 2.The plaintiff's suit struck out and dismissed
  3. 3.The 1st defendant to have the costs of the application and of the entire suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159 (including Article 159(2)(d))
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 7 (including Explanation 4) and section 34

Cases cited (5)

  • D.T. Dobie & Company (K) Ltd. vs. Muchina
    [1982] KLR 1
  • Murri vs. Murri and another
    [1991] E.A 209 (CAK)
  • J.P. Machira vs. Wangethi Mwangi & Another
    Civil Appeal No. 179 of 1997 (unreported)
  • D.T. Dobie & Company (Kenya) Ltd. vs. Joseph Mbaria Muchina & Another
    Civil Appeal No. 37 of 1978 (unreported)
  • Uhuru Highway Development Limited vs. Central Bank of Kenya & others
    CA No. 36 of 1996 (unreported)
Jurisdiction invoked
Original civil jurisdiction over the land dispute; strike-out application under the court's inherent power to strike out pleadings (Civil Procedure Act, section 7 res judicata invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elizabeth Osewe Suing on behalf of the Estate of Mishack Engweso Omolo) v Andronico Otieno Anindo & another [2015] KEELC 9 (KLR)", Case Analysis (2015). Not stated on the face of the ruling (Kisii ELC suit, Notice of Motion dated 3rd November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/9/eng@2015-12-04

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