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ELCPartially AllowedNotice of Motion dated 14th February 2018 within the plaint suit (Nakuru ELC), by the 7th and 8th defendants· [2018] KEELC 664 (KLR)

Amos K. Chomboi v Baringo County Government & 7 others [2018] KEELC 664 (KLR)

Environment and Land Court
27 November 2018
1,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land claim over a parcel already finally decided in earlier litigation, confirming you cannot re-litigate the same ownership dispute twice.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 14th February 2018 by the 7th and 8th defendants in an Environment and Land Court suit at Nakuru, seeking under Order 2 rule 15 of the Civil Procedure Rules the striking out of the plaintiff's suit in so far as it related to parcel Pokor/Kures/83, on the ground of res judicata. The applicants showed that the 7th defendant was the sole defendant in Nakuru HCCC No. 644 of 1991 (OS), in which the plaintiff and the deceased were plaintiffs claiming Pokor/Kures/83 by adverse possession. The High Court found for the OS plaintiffs on 16th June 2006, but on 20th March 2014 the Court of Appeal in Nakuru Civil Appeal No. 44 of 2007 set aside that judgment and dismissed the OS with costs. The plaintiff opposed, asserting that the reliefs and parties were distinguishable. The court restated the ingredients of res judicata under Section 7 of the Civil Procedure Act, applying the Court of Appeal's formulation in John Florence Maritime Services. It found that the plaintiff's claim of ownership of Pokor/Kures/83 was the foundation of his injunction claim, and that ownership had been determined with finality in the prior litigation. The suit in so far as it concerned Pokor/Kures/83 was struck out as res judicata; the claim over Pokor/Kures/65 survived. Costs were deferred to the conclusion of the entire case because the plaint did not tie any defendant to any particular plot.

Key legal issues

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01

Whether the claim over Pokor/Kures/83 is res judicata

Holding

The suit in so far as it concerns Pokor/Kures/83 is res judicata and was struck out

Reasoning

The plaintiff was a plaintiff in Nakuru HCCC No. 644 of 1991 (OS) in which entitlement to Pokor/Kures/83 by adverse possession was claimed; the deceased was also a plaintiff in that suit. The High Court found for the plaintiffs, but the Court of Appeal in Nakuru Civil Appeal No. 44 of 2007 set aside that judgment and dismissed the OS. The parties and subject matter are the same, the determining court was competent, and the matter was finally decided. The plaintiff's claim of ownership as foundation for an injunction over Pokor/Kures/83 is therefore barred.

p. 2
02

The ingredients of res judicata under Section 7 of the Civil Procedure Act

Holding

The court adopted the three ingredients: the matter in dispute in the former suit must be directly and substantially in dispute; the parties must be the same or claim under the same title; and the former court must have been competent and have determined the matter finally

Reasoning

Relying on Section 7 of the Civil Procedure Act and the decision in John Florence Maritime Services, the court restated the ingredients of res judicata and applied them to the facts. The parcels, the parties, the title under which the plaintiff claims, and the finality of the Court of Appeal's determination all pointed to the doctrine applying to the claim over Pokor/Kures/83.

p. 2

Legal principles established

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  • For res judicata to apply, there must have been a previous suit in which the matter was in issue; the parties must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court; and the issue must be raised again in the new suit
  • A claimant cannot re-litigate an issue already determined with finality by a superior court; a claim for injunction founded on ownership already negated is barred by res judicata

Court orders

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  1. 1.The plaintiff's suit in so far as it concerns the parcel of land known as Pokor/Kures/83 is struck out as res judicata
  2. 2.Costs of the suit as regards Pokor/Kures/83 to the defendants, to be determined at the conclusion of the entire case since the plaintiff's suit as regards Pokor/Kures/65 survives

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 2 rule 15

Cases cited (1)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 2 rule 15 of the Civil Procedure Rules and Section 7 of the Civil Procedure Act

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, "Amos K. Chomboi v Baringo County Government & 7 others [2018] KEELC 664 (KLR)", Case Analysis (2018). Notice of Motion dated 14th February 2018 within the plaint suit (Nakuru ELC), by the 7th and 8th defendants. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/664/eng@2018-11-27

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