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ELCStruck OutNot stated in judgment· [2017] KEELC 2657 (KLR)

Henry Karakacha Tamata v Josem Kulova Karakacha & 3 others [2017] KEELC 2657 (KLR)

Environment and Land Court
27 June 2017
762 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land suit because the same family dispute had already been decided in a succession case.

What this practically means

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Executive summary

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The 1st, 3rd and 4th defendants raised a preliminary objection under Order 51 rule 14 of the Civil Procedure Rules 2010 seeking the striking out of the plaintiff's entire suit and the application dated 25th May 2017 on the grounds that the court lacked jurisdiction, that the suit was res judicata in view of Kakamega High Court Succession Cause No. 307 of 2000, and that hearing it would amount to sitting on appeal from that succession cause. The plaintiff countered that the suit was founded on fraud and misrepresentation over LR No. KAKAMEGA/SHAMBERERE/1852, that the 2nd defendant's registration of that parcel in 1993 was irregular and outside the distribution in the certificate of confirmation of grant dated 23rd January 2015, and that the Environment and Land Court, not the Succession Act, had jurisdiction to cancel fraudulent registrations under section 13(2)(b) of the Environment and Land Court Act. The court applied section 7 of the Civil Procedure Act, holding that the parties and subject matter were the same as in the concluded succession cause and that the alleged fraud, which predated that cause, ought to have been raised there, following John Omolo Oracha & 3 Others v Kenya Petroleum Refineries Ltd & 3 Others (2016) eKLR. Upholding the objection, the court struck out both the suit and the application dated 25th May 2017 and awarded costs to the respondents.

Key legal issues

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01

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

Holding

Yes. The parties and the subject matter (the parcel KAKAMEGA/SHAMBERERE/1852) are the same as in Kakamega High Court Succession Cause No. 307 of 2000, which was heard and determined by a court of competent jurisdiction; the alleged fraud ought to have been raised in that suit.

Reasoning

The court applied section 7 of the Civil Procedure Act, finding it not disputed that a succession cause over the same parcel had been adjudicated and concluded by the family court, that the parties were the same relatives, and that the fraud allegation predates the succession proceedings. Following John Omolo Oracha & 3 Others v Kenya Petroleum Refineries Ltd & 3 Others (2016) eKLR, the court held the doctrine proved and struck out the suit.

p. 3
02

Whether the Environment and Land Court has jurisdiction over the dispute and whether hearing it would amount to sitting on appeal over the succession cause

Holding

The court lacks jurisdiction; exercising it would amount to sitting on an appeal from the succession cause. The objection was upheld and the suit struck out.

Reasoning

The court accepted the defendants' objection that the claim, being an attempt to relitigate matters determined in the succession cause, would require this court to sit on appeal from the family court's decision. Jurisdiction, though claimed under section 13(2)(b) of the Environment and Land Court Act, could not be exercised over a matter barred by res judicata. The suit and application were therefore struck out with costs.

p. 3

Legal principles established

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  • New issues such as fraud that could have been raised in a former suit between the same parties over the same subject matter cannot found a fresh suit; the doctrine of res judicata under section 7 of the Civil Procedure Act bars such a suit.
  • A subsequent suit seeking to impugn a determination already made by a court of competent jurisdiction amounts to sitting on appeal over that determination.

Court orders

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  1. 1.The suit is struck out
  2. 2.The application dated 25th May 2017 is struck out
  3. 3.Costs of the suit and application awarded to the respondents (the defendants)

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 51 rule 14
  • Environment and Land Court Actsection 13(2)(b)
  • Civil Procedure Actsection 7
  • Succession ActCap 300 of 1989

Cases cited (1)

  • John Omolo Oracha & 3 Others v Kenya Petroleum Refineries Ltd & 3 Others
    (2016) eKLR
Jurisdiction invoked
Environment and Land Court Act, section 13(2)(b) as invoked by the plaintiff; preliminary objection under Order 51 rule 14 of the Civil Procedure Rules 2010

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, "Henry Karakacha Tamata v Josem Kulova Karakacha & 3 others [2017] KEELC 2657 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2657/eng@2017-06-27

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