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ELCDismissedE & L No. 163 of 2013 (formerly HCCC No. 93 of 2010)· [2017] KEELC 1147 (KLR)

David Kipketer Chumo v Geoffrey J. Koskei [2017] KEELC 1147 (KLR)

Environment and Land Court
3 October 2017
MOM.A Odeny
846 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed an attempt to shut down a land dispute early, ruling that res judicata must be argued at full trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a Notice of Motion dated 18th August 2015 in which the Defendant sought striking out of the suit on the ground of res judicata, together with costs. The applicant, through Mr Chemwok, submitted that the same parties had litigated the same subject matter in Land Dispute No. 38 of 1999, whose award was adopted as judgment on 25th November 1999, in Civil Case No. 27 of 1999 (itself found res judicata), in Eldoret Civil Suit No. 50 of 2001, and in suits Nos. 93 of 2010 and 163 of 2013, rendering the present suit an abuse of process; an appeal No. 44 of 2001 against the tribunal decision had been dismissed for want of prosecution. The Plaintiff, through Mr Chepkwony, opposed the application, arguing that the Land Dispute Tribunal lacked jurisdiction over land ownership, rendering its decree null and void; that the appeal dismissed for want of prosecution did not attract res judicata; and that Civil Suit No. 50 of 2001 involved different parties and different land, while HCC No. 93 of 2010 is the same suit as the present E&L No. 163 of 2013 following transfer to the Environment and Land Court. The sole issue was whether the suit is res judicata under Section 7 of the Civil Procedure Act. The court noted an earlier ruling by Mshila J dated 6th February 2013 which had left the issues of multiplicity of suits, res judicata and abuse of process for the full trial, and declined to re-adjudicate on the matter. The application was dismissed with costs to the Plaintiff, and the parties were directed to comply with Order 11 within 30 days.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The application was dismissed because the res judicata question had already been decided by Mshila J in a ruling of 6th February 2013, which directed that the issue of multiplicity of suits, res judicata and abuse of process be canvassed at full trial

Reasoning

The court applied Section 7 of the Civil Procedure Act as the governing provision on res judicata. On examining the record, it found an earlier ruling by Mshila J in the same case that expressly left the res judicata and abuse-of-process questions to be canvassed at a full trial. Respecting that prior adjudication, the judge declined to revisit the issue and dismissed the applicant's notice of motion, directing compliance with Order 11 within 30 days.

p. 2

Legal principles established

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  • The test for res judicata is governed by Section 7 of the Civil Procedure Act, requiring the same matter directly and substantially in issue between the same parties or their privies, litigating under the same title, in a competent court, and heard and finally decided
  • Where an issue such as res judicata has already been adjudicated upon by the court in a prior ruling, the court will not deal with it again

Court orders

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  1. 1.The Notice of Motion dated 18th August 2015 seeking striking out of the suit on grounds of res judicata is dismissed
  2. 2.Costs of the application awarded to the Plaintiff
  3. 3.Parties to comply with Order 11 within 30 days

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (suit transferred from the High Court after creation of the E&L Court)

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, "David Kipketer Chumo v Geoffrey J. Koskei [2017] KEELC 1147 (KLR)", Case Analysis (2017). E & L No. 163 of 2013 (formerly HCCC No. 93 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1147/eng@2017-10-03

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