Sarah Chesiele Barta v Kiplangat Barta & 2 others [2018] KEELC 4572 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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)
The preliminary objection was not merited; whether the suit is res judicata should be determined after a full hearing with complete evidence.
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.
Whether the suit is an abuse of the process of the court
Not sustained at the interlocutory stage; dismissed with the preliminary objection.
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.
Legal principles established
#- 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
#- 1.Preliminary objection dismissed
- 2.Parties to comply with Order 11 within 30 days to pave way for expeditious disposal of the case
- 3.Costs to abide the main suit
- Jurisdiction invoked
- Original civil jurisdiction; objection based on section 7 of the Civil Procedure Act Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.