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ELCDismissed· [2018] KEELC 2476 (KLR)

Patrick Jeview Kanga v Grace Kagige Ntwiga & another [2018] KEELC 2476 (KLR)

High Court of Kenya
17 July 2018
787 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court at Chuka dismissed a land dispute appeal because the same issue had already been decided by other courts.

What this practically means

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Executive summary

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This was a first-instance decision of the High Court at Chuka summarily dismissing an appeal under section 79B of the Civil Procedure Act. The appeal challenged a ruling by Hon. J. M. Njoroge, CM, delivered at Chuka Law Courts, which allowed a preliminary objection dated 27/12/2017 and dismissed the applicant's notice of motion dated 18/12/2017. That motion, brought under Article 40 of the Constitution and sections 28(B) and 68 of the Land Registration Act, 2012, had sought an order of inhibition restricting any transfer, sale or disposal of land parcel KARINGANI/MUGIRIRWA/569 and maintenance of status quo pending hearing of the main suit. The Chief Magistrate found that parcel 569 had been the subject of LDT case no. 3/2003, that the applicant's award of parcel 1756 was overturned by the Eastern Province Land Disputes Appeals Committee sitting at Embu, that an eviction order issued against the applicant on 28/7/2015, and that the High Court in succession cause no. 131 of 2015 had ordered removal of an inhibition over parcel 1756. The application was therefore res judicata and an abuse of court process, and was dismissed with costs. P. M. Njoroge, J, perused the proceedings and held there was no sufficient ground for interfering with the ruling, summarily dismissing the appeal. The judgment contains an internal inconsistency in the date of the impugned ruling (21st February 2018 versus 21/2/2017).

Key legal issues

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01

Whether there was sufficient ground to interfere with the Chief Magistrate's ruling

Holding

No; the appeal was summarily dismissed under section 79B of the Civil Procedure Act, the court agreeing with the subordinate court's findings on res judicata and abuse of process.

Reasoning

The judge perused the lower court proceedings and the impugned ruling. The ruling had found that the applicant's interest in parcel KARINGANI/MUGIRIRWA/569 and the resultant subdivision parcel 1756 had been determined by the Land Disputes Appeals Committee, an eviction order, and the High Court in succession cause no. 131 of 2015, which ordered the removal of an inhibition over parcel 1756. Reviving the same issue was res judicata and an abuse of process.

p. 2
02

Res judicata and abuse of court process

Holding

The application dated 18/12/2017 was res judicata and an abuse of the court process because the issue of inhibition or restriction had already been heard and determined by the High Court.

Reasoning

The Chief Magistrate found that parcel 569 was the subject of LDT case no. 3/2003; the Appeals Committee at Embu directed the applicant out of the land; an eviction order issued on 28/7/2015; and the High Court in succession cause no. 131 of 2015 ordered the inhibition over parcel 1756 removed. The applicant's revival of the matter was therefore barred. The High Court on appeal saw no reason to interfere.

p. 2

Legal principles established

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  • An appeal may be summarily dismissed under section 79B of the Civil Procedure Act where no sufficient ground for interfering with the subordinate court's decision is shown.

Court orders

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  1. 1.The appeal is dismissed summarily under section 79B of the Civil Procedure Act
  2. 2.It is so ordered

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration Act, 2012Sections 28(B) and 68
  • Civil Procedure ActSection 79B
On appeal from
Chief Magistrate's Court at Chuka
Not stated (ruling of 21st February 2018/2017)
Jurisdiction invoked
Section 79B of the Civil Procedure Act (summary dismissal of appeals)

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, "Patrick Jeview Kanga v Grace Kagige Ntwiga & another [2018] KEELC 2476 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2476/eng@2018-07-17

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