Makau Muliko Kivinda & 2 others v Musyoki Mutuku [2017] KEELC 3237 (KLR)
The bottom line
#A Kenyan court confirmed that res judicata objections need evidence and a formal application, and dismissed a land dispute appeal with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was res judicata Kilungu PMCC No. 19 of 2011
The lower court was correct to decline to find res judicata on a preliminary objection; the pleadings and ruling from the previous suit were absent and the issue could only be determined after evidence
The court noted that a res judicata objection requires perusal of the pleadings and judgment in the prior suit, which can only be availed by affidavit evidence. The Record of Appeal contained neither the pleadings nor the ruling in Kilungu PMCC No. 19 of 2011. Further, the earlier suit was dismissed for lack of jurisdiction because the plots were under adjudication, so it was not heard and finally decided, and a fresh suit after obtaining the Land Adjudication Officer's consent was permissible.
Whether the magistrate had jurisdiction over plots in an adjudication section
The Respondent pleaded that he had obtained the consent of the District Land Adjudication and Settlement Officer, Makueni, under the Land Adjudication Act; whether he did so is a matter for trial
The Appellants argued that the Respondent never exhausted the dispute mechanisms under Cap 284. The court observed that the Respondent pleaded having obtained the consent of the District Land Adjudication and Settlement Officer before instituting the suit, and whether that averment is true, as well as whether the suit properties are the same, can only be ascertained at trial. Hence the preliminary objection was properly dismissed.
Legal principles established
#- A matter is res judicata only if the previous matter was heard and finally decided by a competent court between the same parties over the same subject matter
- Res judicata should be raised by way of a formal application supported by the pleadings and judgment in the previous suit, not merely a preliminary objection
- A suit dismissed for want of jurisdiction (the area being under adjudication) was not heard and finally decided; the plaintiff may file a fresh suit after obtaining the Land Adjudication Officer's consent
Court orders
#- 1.The Appellants' Appeal is dismissed with costs to the Respondent
- On appeal from
- Magistrate's Court (Machakos CMCC No. 528 of 2013)
- Machakos CMCC No. 528 of 2013
- Jurisdiction invoked
- Appellate jurisdiction over a subordinate court ruling (Environment and Land Court); no specific provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau Muliko Kivinda & 2 others v Musyoki Mutuku [2017] KEELC 3237 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3237/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.