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ELCStruck OutELC Case No. 29 of 2012· [2019] KEELC 3388 (KLR)

Solomon Kasudi Chagala v Ramadhan Kivairu Isindu & 2 others [2019] KEELC 3388 (KLR)

Environment and Land Court
9 May 2019
NMN.A. Matheka
944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a land ownership claim because the same family dispute had already been decided in an earlier case that still stood.

What this practically means

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Executive summary

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The plaintiff, Solomon Kasudi Chagala, brought an originating summons against his three paternal brothers claiming ownership of land parcel KAKAMEGA/SHISEJERI/564 by adverse possession. He asserted ancestral occupation dating to 1953, alleged that the first registered proprietor, Hassani Isindu, took advantage of the minority of his family during adjudication to obtain first registration around 1958 after their father's death but never occupied the land, and sought declarations that adverse possession had accrued, that the defendants' joint title had been extinguished, cancellation of the title, his registration as proprietor, and costs. The defendants, through the 3rd defendant's testimony, raised res judicata, contending that all issues between the parties had been fully determined in Kakamega MISC. AWARD NO. 27 OF 2011. The court treated res judicata as a preliminary issue, considered sections 6 and 7 of the Civil Procedure Act, and perused the pleadings and tribunal proceedings in the earlier award. It found the parties and subject matter identical, noted that the order of 12th March 2012 still stood and had not been set aside and had therefore finalized the matter, and held that there was no need to delve into the merits. The suit was struck out with costs to the defendants on 9th May 2019.

Key legal issues

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Whether the suit was res judicata

Holding

Yes; the parties and subject matter were the same as in Kakamega MISC. AWARD NO. 27 OF 2011, whose order dated 12th March 2012 remained in force and had finalized the matter

Reasoning

The court treated res judicata as a preliminary issue to be determined before the merits. It perused the pleadings and tribunal proceedings in MISC. AWARD NO. 27 OF 2011 (PEx 3,4,5,6), found the parties and subject matter identical, and found the order of 12th March 2012 still stood and had not been set aside. With that finding, no need arose to examine the merits of the adverse possession claim.

p. 2

Legal principles established

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  • Where a matter directly and substantially in issue in a suit has been heard and finally decided between the same parties litigating under the same title, a subsequent suit on it is barred by res judicata under sections 6 and 7 of the Civil Procedure Act

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
On appeal from
null
null
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (original claim for adverse possession of land parcel KAKAMEGA/SHISEJERI/564)

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, "Solomon Kasudi Chagala v Ramadhan Kivairu Isindu & 2 others [2019] KEELC 3388 (KLR)", Case Analysis (2019). ELC Case No. 29 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3388/eng@2019-05-09

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