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ELCDismissedBungoma High Court Civil Suit (number not stated in the judgment)· [2017] KEELC 2831 (KLR)

Dorcas Indombi Wasike alias Dorika Indombo Wasike v Benson Wamalwa Khisa & 5 others [2017] KEELC 2831 (KLR)

High Court of Kenya
20 April 2017
SMS. Mukunya
980 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This first-instance ruling of the High Court at Bungoma (S. Mukunya J, dated 20 April 2017) determines a preliminary objection raised by the defendants in a land suit brought by mother and son, the plaintiffs, claiming 5.3 acres originally forming part of LR Bungoma/Naitiri/83. The land had been the subject of Kitale HCCC No. 17 of 1997, in which 5.3 acres were ordered excised from parcel 83 and added to parcel 79, leading to rectification of the register and creation of parcels 118 and 119. While an appeal was pending, the defendants entered and took possession of the 5.3 acres. The Court of Appeal in Nakuru Civil Appeal No. 87 of 2004 (Bosire, Githinji and Waki JJA, judgment of 12 November 2010) allowed the appeal, set aside the High Court judgment and dismissed the underlying suit with costs. The plaintiffs sued for eviction, cancellation of title LR Bungoma/Naitiri/118 and mesne profits. The defendants objected that the suit was res judicata on the strength of the Kitale judgment. The court held that the plea was misplaced: the judgment relied upon had been set aside by the Court of Appeal and could not bind the court, and the matters now raised - vacation, eviction, cancellation of title, mesne profits and costs - were never decided in that case. The preliminary objection was dismissed with costs to the plaintiffs, and the suit was directed to be set down for hearing on the merits.

Key legal issues

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Whether the suit is res judicata in view of the judgment in Kitale HCCC No. 17 of 1997

Holding

The plea of res judicata fails because the matters now in suit (vacation, eviction, cancellation of title, mesne profits) were not decided in that case, and the judgment relied on was set aside by the Court of Appeal

Reasoning

The court traced the history: Kitale HCCC No. 17/1997 ordered 5.3 acres excised from parcel 83 and added to parcel 79, upon which parcels 118 and 119 were created. The Court of Appeal in Nakuru Civil Appeal No. 87 of 2004 allowed the appeal, set aside that judgment and dismissed the suit. The defendants, who derive possession from the excision, cannot rely on a judgment that no longer stands, and the matters now claimed were never determined in that suit.

p. 3

Legal principles established

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  • Reliance on a first-instance judgment that has been set aside on appeal is misplaced; such a judgment cannot found a plea of res judicata
  • A judgment of the Court of Appeal binds the trial court and parties cannot feign ignorance of it

Court orders

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  1. 1.The preliminary objection dated 3rd March 2014 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiffs
  3. 3.The suit to be fixed down for hearing on the issues of vacation, eviction, cancellation of LR Bungoma/Naitiri/118, mesne profits and costs on the merits
Jurisdiction invoked
Original civil jurisdiction of the High Court over land disputes (decision on a preliminary objection in a pending suit; no specific constitutional provision cited)

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, "Dorcas Indombi Wasike alias Dorika Indombo Wasike v Benson Wamalwa Khisa & 5 others [2017] KEELC 2831 (KLR)", Case Analysis (2017). Bungoma High Court Civil Suit (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2831/eng@2017-04-20

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