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ELCPartially AllowedKericho CMCC No. 3 of 2018 (appeal against ruling therein)· [2019] KEELC 2990 (KLR)

Rebecca Chepngeno Chumo v Christina Cheptoo Chumo [2019] KEELC 2990 (KLR)

High Court of Kenya
29 May 2019
1,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first appeal to the High Court at Kericho by Rebecca Chepngeno Chumo against a ruling of Hon. B.R Kipyegon, Senior Resident Magistrate, delivered on 19th September 2018 in Kericho CMCC No. 3 of 2018, upholding a preliminary objection that the plaintiff's suit was res judicata by reason of a judgment and decree dated 2nd May 1986 in Kericho RMCC No. 27 of 1985 between the same parties over land parcel KERICHO/KIPCHIMCHIM/1598. The appellant argued that the 1985 case concerned inheritance, whereas her suit alleged fraudulent transfer of the suit property to her own name without a certificate of confirmation of grant, facts not in existence when the 1985 suit was decided; she also complained that the trial magistrate failed to consider her written submissions. J.M Onyango J, re-evaluating the matter as a first appeal, found that the grant of letters of administration was issued on 3rd May 1986 and the title deed on 30th May 1986, both after the 1986 judgment, so the manner in which the appellant obtained title could not have been an issue in the earlier suit. The trial magistrate erred in finding res judicata merely from identity of parties and subject matter. The appellant also suffered prejudice from her submissions not being considered, though the delay was her own fault. The appeal was allowed, the ruling set aside and substituted with an order dismissing the preliminary objection, the suit to be set down for hearing on the merits; each party to bear their own costs, the appellant being denied costs due to her late filings.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 2
02

Whether the appellant suffered prejudice by the trial magistrate failing to consider her written submissions

Holding

The appellant suffered prejudice, though she was to blame for filing her submissions late.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The appeal is allowed
  2. 2.The Ruling in Kericho CML&E No. 3 of 2018 is set aside and substituted with an order dismissing the Preliminary Objection
  3. 3.The Plaintiff's suit in Kericho CML&E No. 3 of 2018 shall be set down for hearing on the merits
  4. 4.Each party shall bear their own costs

Authorities

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Cases cited (5)

  • Bernard Mugo Ndegwa v James Githae & 2 Others
    (2010) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) E.A 696
  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
  • Timamy Issa Abdalla v Swaleh Salim Imu & others
    Civil Appeal No. 36 of 2013
  • Saifudeen Abdulla Bhai & Hussein Abdula Bhai v Zainabu Mwinyi
    (2014) eKLR
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

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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, "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.