Julius Barasa Burudi & 4 others v Jimmy Abel Mkombo [2018] KEELC 3112 (KLR)
The bottom line
#The High Court struck out a fresh land ownership claim because the same dispute had already been decided, and ordered the occupants to vacate within three months.
What this practically means
#Executive summary
#Key legal issues
#Whether the originating summons is barred by res judicata under section 7 of the Civil Procedure Act
The suit is res judicata because the same subject matter - ownership and occupation of land parcel No. S/Kabras/Shamberere/367 - was litigated and finally determined in Kakamega HCC No. 513 of 2014, and the applicants litigate under the title of the defendant in that suit.
The court found that a previous suit, Kakamega HCC No. 513 of 2014 (Jimmy Habel Mkimbo v Solomon Juma Ambunya), dealt squarely with the same subject matter and the same question of ownership. The applicants had been evicted pursuant to the judgment in that suit and had re-entered the land. They claim through the defendant in the earlier suit, and the combined effect of the proceedings and eviction interrupted any alleged adverse possession.
Whether the originating summons is an abuse of the due process of the court
The suit is an abuse of process brought to validate the applicants' illegal re-entry after eviction, and it was struck out.
The court held that the applicants, having been evicted on 2nd July 2015 under a valid court order, re-entered the land and filed the suit to validate their stay. Litigation must come to an end, and the applicant is entitled to enjoy the fruits of his judgment. It would be unconstitutional to continue depriving the registered proprietor the use of his property.
Whether the applicants have any legal right over the suit parcel
The applicants are trespassers with no legal right to claim on the suit parcel.
The court found that the applicants were on the land by virtue of leasing from or invitation by the defendant in the earlier suit, who had been declared a trespasser. They could not claim independent rights and ought to have sought restraining orders when the eviction was being enforced rather than re-entering the land and filing a fresh suit.
Legal principles established
#- Res judicata bars subsequent proceedings when there has been adjudication by a court of competent and concurrent jurisdiction which conclusively determined the rights of the parties
- Res judicata extends to every point which properly belonged to the subject of litigation and which the parties exercising due diligence might have brought forward
- A registered proprietor has a right to enjoy the fruits of a valid judgment and to the user of his property
Court orders
#- 1.The originating summons filed herein be struck out
- 2.The applicants/respondents are given 3 (three) months to vacate from land parcel No.S/Kabras/Shamberere/367 from the date of this ruling and in default they shall be forcefully evicted
- 3.The costs of this application to the applicant
- Jurisdiction invoked
- Sections 1A, 1B and 7 of the Civil Procedure Act and Order 2 Rule 15 (B), (C) and (D) and sub-rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Barasa Burudi & 4 others v Jimmy Abel Mkombo [2018] KEELC 3112 (KLR)", Case Analysis (2018). Kakamega CMCC OS E031 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3112/eng@2018-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.