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ELCDismissedKericho HCCC (not stated in extract)· [2018] KEELC 4572 (KLR)

Sarah Chesiele Barta v Kiplangat Barta & 2 others [2018] KEELC 4572 (KLR)

High Court of Kenya
26 January 2018
1,303 words in judgment
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The bottom line

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A Kericho court refused to throw out a land dispute early, ruling the party claiming the case was already decided had not proven it.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection by the 1st defendant seeking dismissal of the plaintiff's suit on two grounds: lack of jurisdiction under section 7 of the Civil Procedure Act (res judicata) and abuse of court process. The plaintiff, Sarah Chesiele Barta, seeks rectification of the register by cancelling titles KERICHO/KIMULOT/1551 and 1552 and reinstating KERICHO/KIMULOT/514, alleging the new titles were procured through fraud, undue influence and misrepresentation by the defendants acting in cahoots. The defendant relied on three prior Kericho suits. The court examined each: in HCCC No. 21 of 1995 the outcome was unclear and no decree was exhibited; in HCCC No. 32 of 1996 judgment was entered for Kiplangat Barta for transfer of half of parcel 514; and in HCCC No. 6 of 2003 (O.S) a claim for 2 acres in trust was dismissed as emanating from HCCC No. 32 of 1996. The court held that res judicata requires the same or substantially same issue, a final judgment by a competent court, and the same parties or privies. Although the prior litigation may well explain the subdivision, counsel for the defendant failed to place before the court the material necessary to prove res judicata, and plaintiff's counsel properly conceded the fraud issue had not been adjudicated. Holding that justice requires a full evidential hearing, the court dismissed the preliminary objection, directed Order 11 compliance within 30 days, and ordered costs to abide the main suit, reserving the res judicata question for revisit after full hearing.

Key legal issues

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01

Whether the suit is res judicata by virtue of Kericho HCCC No. 21 of 1995, No. 32 of 1996 and No. 6 of 2003 (O.S)

Holding

The preliminary objection was not merited; whether the suit is res judicata should be determined after a full hearing with complete evidence.

Reasoning

The court examined each prior suit. In HCCC No. 21 of 1995 the outcome was unclear and no decree was attached by either party. Although HCCC No. 32 of 1996 was decided between the same parties and parcels 1551 and 1552 may derive from the resultant judgment, counsel for the plaintiff conceded that the fraud allegation in the instant suit had not been adjudicated. The defendant's defence was a mere denial and he failed to place before the court the material proving res judicata. In the interest of justice the parties should present evidence in totality before the issue is decided.

p. 3
02

Whether the suit is an abuse of the process of the court

Holding

Not sustained at the interlocutory stage; dismissed with the preliminary objection.

Reasoning

Having found that the res judicata ingredients were not established on the material placed before the court, the companion ground of abuse of process could not succeed either. The court directed compliance with Order 11 to expedite the full hearing, where the res judicata issue may be revisited.

p. 3

Legal principles established

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  • Res judicata requires identity of issue, a final judgment on the merits by a competent court, and the same parties or parties in privity.
  • The party raising res judicata bears the evidential burden of proving the prior suit and its outcome.

Court orders

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  1. 1.Preliminary objection dismissed
  2. 2.Parties to comply with Order 11 within 30 days to pave way for expeditious disposal of the case
  3. 3.Costs to abide the main suit

Authorities

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Legislation

  • Civil Procedure Act Cap 21section 7

Cases cited (3)

  • Kericho HCCC No. 21 of 1995 - Kiplangat Arap Barta v Kipkoske arap Barta
  • Kericho HCCC No. 32 of 1996 - Kiplangat Barta v Sarah Chesiele Barta
  • Kericho HCCC No. 6 of 2003 (O.S) - Cheruiyot Chepkwony alias Mapengo v Sara Chesiele Barta and Kiplangat Barta
Jurisdiction invoked
Original civil jurisdiction; objection based on section 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, "Sarah Chesiele Barta v Kiplangat Barta & 2 others [2018] KEELC 4572 (KLR)", Case Analysis (2018). Kericho HCCC (not stated in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4572/eng@2018-01-26

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