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ELCStruck OutELC Case No. 158 of 2013· [2018] KEELC 1752 (KLR)

Messen Shisia Juma v Bilha Olingo Muluka & another [2018] KEELC 1752 (KLR)

Environment and Land Court
19 September 2018
NMN.A. Matheka
1,075 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The plaintiff, formerly registered proprietor of L.R. No. Butsotso/Shikoti/4329, sued the two defendants alleging that his land was fraudulently transferred in 1996 to the 1st defendant, who in turn transferred it to the 2nd defendant in 2007. He sought restoration of his name to the register and mesne profits, plus costs. The defendants denied the sale, fraud and the plaintiff's entitlement, asserting that the 1st defendant purchased the land for Ksh. 70,000/- in 1996, gave vacant possession, and lawfully transferred it to the 2nd defendant by way of gift. They raised preliminary objections that the suit was statute-barred and res judicata, the same dispute having been litigated in Kakamega CMCC No. 444 of 2009 (withdrawn) and Kakamega HCCC No. 124 of 2011, where the court found the claim time-barred under section 7 of the Limitation of Actions Act and dismissed/struck out the suit with costs. The plaintiff admitted the prior proceedings. Applying section 7 of the Civil Procedure Act, the court held that the High Court, a court of equal and competent jurisdiction, had already conclusively determined the dispute between the same parties, so the present claim was res judicata. There was no indication the earlier ruling had been appealed. The court struck out the suit with costs to the defendants.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata as the same dispute between the same parties was heard and determined by the High Court in Kakamega HCCC No. 124 of 2011

Reasoning

The plaintiff admitted having previously filed Kakamega CMCC No. 444 of 2009 (withdrawn) and Kakamega HCCC No. 124 of 2011, which was heard and determined with the suit dismissed/struck out with costs. The court found that the High Court, a court of equal and competent jurisdiction, had determined the dispute, so the same issues could not be re-litigated before the ELC.

p. 2
02

Whether the claim was time-barred

Holding

The prior ruling in Kakamega HCCC No. 124 of 2011 had found the claim time-barred under section 7 of the Limitation of Actions Act

Reasoning

The defendants noted that in the earlier suit the court found the plaintiff's claim time-barred in view of section 7 of the Limitation of Actions Act. There was no evidence that the ruling was challenged on appeal, so it stood as a conclusive determination against the plaintiff.

p. 2

Legal principles established

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  • The doctrine of res judicata requires an end to litigation where a court of competent jurisdiction has rendered a conclusive decision
  • A suit in which the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties litigating under the same title before a competent court is barred under section 7 of the Civil Procedure Act

Court orders

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  1. 1.The plaintiff's suit is struck out with costs to the defendants

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Limitation of Actions Actsection 7
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to land (Environment and Land Court Act); suit filed as ELC Case No. 158 of 2013

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, "Messen Shisia Juma v Bilha Olingo Muluka & another [2018] KEELC 1752 (KLR)", Case Analysis (2018). ELC Case No. 158 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1752/eng@2018-09-19

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