Rebecca Chepngeno Chumo v Christina Cheptoo Chumo [2019] KEELC 2990 (KLR)
The bottom line
#Kenya's High Court ruled a land dispute wasn't barred by an earlier case because the fraud claim arose after that earlier judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit in Kericho MCL & E No. 3 of 2018 was res judicata by virtue of the judgment in RMCC No. 27 of 1985
The plea of res judicata failed because the issue of how the appellant obtained title in May 1986 could not have been in issue in the 1985 suit decided on 2nd May 1986.
Although the parties and subject matter in the two suits were the same, the grant of letters of administration was issued on 3rd May 1986 and the appellant obtained a title deed on 30th May 1986, after the judgment in RMCC No. 27 of 1985. The issue of fraudulent transfer under the grant therefore could not have arisen in the earlier suit. Res judicata requires more than identity of parties and subject matter; the matter in issue must have been determined in the former suit.
Whether the appellant suffered prejudice by the trial magistrate failing to consider her written submissions
The appellant suffered prejudice, though she was to blame for filing her submissions late.
The trial magistrate indicated in his ruling that the plaintiff's counsel had not yet filed her submissions, meaning they were not considered. On first appeal the submissions raised a pertinent distinction between inheritance in the 1985 case and alleged fraudulent transfer in the later suit, which bore directly on the res judicata plea. Prejudice resulted, though the delay in filing submissions was the appellant's own fault, justifying denial of costs.
Legal principles established
#- A suit cannot be res judicata where the facts relied on did not exist at the time of the former suit; identity of parties and subject matter alone is insufficient.
Court orders
#- 1.The appeal is allowed
- 2.The Ruling in Kericho CML&E No. 3 of 2018 is set aside and substituted with an order dismissing the Preliminary Objection
- 3.The Plaintiff's suit in Kericho CML&E No. 3 of 2018 shall be set down for hearing on the merits
- 4.Each party shall bear their own costs
- On appeal from
- Senior Resident Magistrate's Court, Kericho
- Kericho CMCC No. 3 of 2018
- Jurisdiction invoked
- First appeal from the subordinate court (trial court's ruling dismissing suit as res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rebecca Chepngeno Chumo v Christina Cheptoo Chumo [2019] KEELC 2990 (KLR)", Case Analysis (2019). Kericho CMCC No. 3 of 2018 (appeal against ruling therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2990/eng@2019-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.