Dyphina M Khaonjeli v Waziri Abubakari Ali & 2 others [2019] KEELC 3828 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to enforce her adverse possession win, rejecting arguments that her case was already decided or under appeal.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The plea fails because the cited former suit was set aside by consent before hearing and was never 'heard and finally decided'
The court perused the record of Bungoma High Court Civil Case No. 58 of 2006. It found the ex parte eviction judgment obtained there was set aside by consent on 8th March 2011, allowing the Applicant to enter appearance and file defence. Since Section 7 requires the matter to have been heard and finally decided, res judicata was not established. The objection also came too late, having been raised only after trial before Mukunya J.
Sub judice / Section 6 Civil Procedure Act
The objection fails; no appeal was filed and there is no stay of proceedings
Counsel for the Respondents submitted the judgment of Mukunya J had been appealed. The court found only a Notice of Appeal dated 6th March 2018 on record; a Notice of Appeal is not an appeal. Even if an appeal existed, no stay of proceedings had been granted, so Section 6 did not bar the court from proceeding.
Enforcement of decree for adverse possession
The Notice of Motion seeking survey, sub-division, transfer and cancellation of title is merited
The application seeks to enforce the decree arising from Mukunya J's judgment of 22nd February 2018, which was neither appealed nor reviewed. The Respondents, though served with the decree, refused to sign transfer documents and did not rebut that averment beyond the preliminary objection. The court held courts should not act in vain and allowed the motion as prayed.
Legal principles established
#- A preliminary objection based on res judicata should be raised at the earliest opportunity as it goes to the jurisdiction of the Court
- Res judicata under Section 7 requires that the former suit was heard and finally decided
- A Notice of Appeal is not an appeal; Section 6 of the Civil Procedure Act does not bar proceedings absent a filed appeal or stay
- A party who consented to consolidation cannot later plead res judicata or sub judice
- A party cannot be denied the fruits of an unappealed judgment by refusing to sign transfer documents
Court orders
#- 1.The Preliminary Objection on res judicata and sub judice is dismissed
- 2.The Notice of Motion dated 6th September 2018 is allowed as prayed
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court following consolidation of suits by consent order dated 17th May 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dyphina M Khaonjeli v Waziri Abubakari Ali & 2 others [2019] KEELC 3828 (KLR)", Case Analysis (2019). Bungoma ELC Case (consolidated with Bungoma High Court Civil Case No. 58 of 2006 and Bungoma ELC Case No. 217 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3828/eng@2019-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.