Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedApplication dated 23rd June 2016 (suits include Kakamega HCC No. 16 of 2009 and Kakamega HCC No. 337 of 2013)· [2017] KEELC 3778 (KLR)

Eliab Musha Imbiakha v Rodgers Orate Kweyu [2017] KEELC 3778 (KLR)

High Court of Kenya at Kakamega
13 July 2017
NMN.A. Matheka
1,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court consolidated two overlapping land suits but refused to strike them out, ruling the dispute covers new land parcels never previously litigated.

What this practically means

#

Executive summary

#
The defendant/applicant moved the High Court at Kakamega by an application dated 23rd June 2016 under sections 3A, 6 and 7 of the Civil Procedure Act and Order 11 Rule 3(1)(h) of the Civil Procedure Rules, seeking priority hearing, consolidation of the suit with Kakamega HCC No. 337 of 2013, striking out of both suits as res judicata, and restoration of the status quo prevailing after implementation of the orders in Misc. Award No. 214 of 2007. The applicant recounted a long history of boundary and access disputes over land parcels BUTSOTSO/SHIKOTI/1814 and 5147, including a Lurambi Land Disputes Tribunal decision adopted as a court order, subsequent suits (Kakamega HCC No. 235 of 1999, Misc. Award No. 214 of 2007, HCC No. 16 of 2009 and HCC No. 337 of 2013), and demarcation carried out in compliance with Justice B.K. Tanui's orders of 14th April 2000, which he said reduced his land, blocked his access road and damaged his property. The plaintiff/respondent opposed, contending the original boundary had been fixed under the 1999 suit's order and that the applicant had used the tribunal award to shift it. The court set out the section 7 test for res judicata, perused the four files, and found they involved the same parties and similar issues. It nonetheless held the matter was not res judicata because it involved other parcels, namely 1814, 5146, 5147 and 1767. The court granted prayer 2 only, consolidating the suit with Kakamega HCC No. 337 of 2013, with costs in the cause. Delivered by N.A. Matheka, J, on 13th July 2017.

Key legal issues

#
01

Res judicata under section 7 of the Civil Procedure Act

Holding

The suits are not res judicata as the dispute involves parcels of land not covered in the earlier suits and awards

Reasoning

The court set out the section 7 test requiring the matter directly and substantially in issue to have been heard and decided in a former suit between the same parties. It perused the files in HCC No. 235 of 1999, Misc. Award No. 214 of 2007, HCC No. 16 of 2009 and HCC No. 337 of 2013 and found they involve the same parties and similar issues, but held that the present matter extends to other parcels (1814, 5146, 5147 and 1767), taking it outside res judicata.

p. 3
02

Consolidation of suits

Holding

This suit and Kakamega HCC No. 337 of 2013 involve the same parties with similar issues and ought to be consolidated

Reasoning

The court perused both files and found that they involve the same parties and similar issues relating to land parcels BUTSOTSO/SHIOKOTI/1814 and BUTSOTSO/SHIKOTI/5147. Consolidation was considered appropriate notwithstanding the rejection of the res judicata plea, and prayer 2 of the application was granted.

p. 4
03

Boundary dispute history between the parties

Holding

There is a variance between the earlier tribunal award and the demarcation carried out in compliance with Justice Tanui's orders of 14th April 2000, which reduced the respondent's land

Reasoning

The court noted that the award in Kakamega HCC No. 235 of 1999 and CM Misc. Award No. 214 of 2007, and the report from HCC No. 16 of 2009 demarcating the boundary in compliance with Justice B.K. Tanui's orders, are at variance in that the demarcation reduced the respondent's land. This underpinned the decision that the dispute was not fully resolved previously.

p. 4

Legal principles established

#
  • Suits involving the same parties and similar issues concerning the same land dispute ought to be consolidated to be heard together
  • A matter is not res judicata where the subsequent suit involves additional parcels of land not covered by the earlier determination

Court orders

#
  1. 1.Prayer 2 of the application dated 23rd June 2016 granted - this suit consolidated with Kakamega HCC No. 337 of 2013 for hearing and final disposal
  2. 2.Costs to be in the cause

Authorities

#

Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 7
  • Civil Procedure RulesOrder 11 Rule 3(1)(h)

Cases cited (1)

  • Kakamega CM Misc. Award No. 214 of 2007
Jurisdiction invoked
Sections 3A, 6 & 7 of the Civil Procedure Act and Order 11 Rule 3(1)(h) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eliab Musha Imbiakha v Rodgers Orate Kweyu [2017] KEELC 3778 (KLR)", Case Analysis (2017). Application dated 23rd June 2016 (suits include Kakamega HCC No. 16 of 2009 and Kakamega HCC No. 337 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3778/eng@2017-07-13

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