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ELCStruck OutApplication dated 3rd August 2016 (Kakamega)· [2018] KEELC 3286 (KLR)

Musa Lichungu v Namisabu Chibieko Arap Sitieni & 2 others [2018] KEELC 3286 (KLR)

Environment and Land Court of Kenya
16 May 2018
3,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out an application to force land transfers because the same dispute had already been decided, ending decades of litigation.

What this practically means

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Executive summary

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The applicant, Musa Lichungu, son of the late Lichungu Mwalati, applied by notice dated 3rd August 2016 seeking orders compelling the 1st and 2nd respondents to sign transfer documents for parcels KAKAMEGA/CHEMUCHE/354 and 355, removal of cautions placed on those parcels by his late father, and the deputy registrar to sign in default. The applicant relied on succession proceedings following his father's death, contending his father had purchased the parcels and placed cautions out of fear of resale. The 1st respondent, Mamisabu Arap Sitienei, and the 2nd respondent, Kimaru Arap Ragut, opposed, contending that the land sale agreements relied on were forgeries or failed for want of full consideration; that a 1979 Land Control Board consent had been rescinded by the Western Province Appeals Committee in 1984; that the applicant had occupied the parcels during tribal clashes; and that the Kabras Land Disputes Tribunal had already ordered the applicant off the land, a decision adopted by the magistrate's court. They further cited the applicant's loss in Kakamega CMCC No.140 of 1990 and the dismissal of his adverse possession suit and appeal for want of prosecution. The court, applying Sections 6 and 7 of the Civil Procedure Act and the decision in John Omolo Oracha v Kenya Petroleum Refineries Ltd, held that the issues had been directly and substantially in issue in former suits and the application was res judicata. Lacking jurisdiction, the court declined to consider the merits, struck out the application with costs to the respondents, holding it an abuse of process and an attempt to reopen concluded litigation through the back door.

Key legal issues

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01

Whether the application is barred by res judicata under Sections 6 and 7 of the Civil Procedure Act

Holding

The application was directly and substantially in issue in former suits (Kakamega CMCC No.140 of 1990 and Kakamega CMC Misc Award No.207 of 2002) and is therefore res judicata; the court lacks jurisdiction to entertain it

Reasoning

The court applied Sections 6 and 7 of the Civil Procedure Act Cap 21, which bar proceedings where the matter in issue was directly and substantially in issue in a former suit between the same parties litigating under the same title and was heard and finally decided. The applicant had litigated the same parcels in prior suits, including a dismissal of a claim by Justice Lenaola and a Land Disputes Tribunal award adopted by the magistrate's court. The applicant was attempting to reopen concluded matters through the back door with unclean hands, making the application an abuse of process.

p. 3
02

Whether the applicant was entitled to transfer orders and removal of cautions over the suit parcels

Holding

The applicant was not entitled to any of the orders sought; the application was struck out with costs to the respondents

Reasoning

The respondents demonstrated long litigation history over the same parcels: the Land Control Board consent relied on by the applicant's father had been rescinded by the Western Province Appeals Committee in 1984; the Kabras Land Disputes Tribunal had ordered the applicant and another off the land; the applicant had lost CMCC No.140 of 1990 and had his adverse possession suit and appeal dismissed for want of prosecution. The application was a wasted attempt to relitigate concluded matters and offended the sound principles of res judicata.

p. 3

Legal principles established

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  • Litigation must come to an end and a party cannot reopen matters directly and substantially in issue in a former suit decided on the merits
  • Where an application is res judicata the court lacks jurisdiction to go into its merits

Court orders

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  1. 1.The application dated 3rd August 2016 is struck out for being incompetent as it offends the principles of res judicata
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 6
  • Civil Procedure Act Cap 21Section 7

Cases cited (1)

  • John Omolo Oracha & 3 Others v Kenya Petroleum Refineries Ltd & 3 Others
    (2016) eKLR
Jurisdiction invoked
Residual first-instance jurisdiction over land matters; court declined jurisdiction on res judicata grounds under Sections 6 and 7 of the Civil Procedure Act Cap 21

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, "Musa Lichungu v Namisabu Chibieko Arap Sitieni & 2 others [2018] KEELC 3286 (KLR)", Case Analysis (2018). Application dated 3rd August 2016 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3286/eng@2018-05-16

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