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ELCPartially AllowedNot stated in the judgment (instant suit, Kitale ELC)· [2019] KEELC 4005 (KLR)

Nahashon Ochieng Onyango v Florence M. Onyango & 3 others [2019] KEELC 4005 (KLR)

Environment and Land Court
28 March 2019
5,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land counterclaim as res judicata, confirming that claims settled in a consent order cannot be re-litigated later.

What this practically means

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Executive summary

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This is a ruling by Mwangi Njoroge, J of the Environment and Land Court at Kitale on a Notice of Motion dated 7th November 2018 by the plaintiff. The plaintiff sought priority hearing, striking out of the defendants' counterclaim and dismissal of the defendants' claim against him as res judicata, and a declaration that his suit was compromised by the consent orders recorded on 25/11/2013 and the further orders of 24/8/2017 in Kitale ELC No. 31 of 2009. The application was anchored on Order 2 Rule 15(1)(d) and Order 51 Rule 1 of the Civil Procedure Rules and Sections 3, 3A, 7, 8 and 63(e) of the Civil Procedure Act. The defendants opposed, contending that the issue of matrimonial property ownership was never determined in the earlier suit, that the consent was never complied with, and that a pending appeal against the orders of 24/8/2017 barred the application. The court held that under Section 7 of the Civil Procedure Act and its Explanation 4, the question whether the land was matrimonial property might and ought to have been raised in the earlier suit; by conceding to the consent, the defendants' counsel waived that claim. The counterclaim, filed after the consent, rehashed resolved matters and would produce conflicting decisions. The court also found no substantive appeal was demonstrated against the orders of 24/8/2017, which merely furthered the consent. The application was allowed: the counterclaim was struck out as res judicata, the plaintiff's suit was declared compromised in terms of the consent and the orders of 24/8/2017, and each party was ordered to bear their own costs of the suit and counterclaim.

Key legal issues

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01

Whether the counterclaim claiming the suit land as matrimonial property is res judicata

Holding

The counterclaim is res judicata because the issue of whether the land was matrimonial property might and ought to have been raised in Kitale ELC No. 31 of 2009, in which a consent order was recorded between the same parties

Reasoning

Section 7 of the Civil Procedure Act bars trying an issue directly and substantially in issue in a former suit between the same parties. Explanation 4 extends the bar to matters which might and ought to have been raised. The consent of 25/11/2013 withdrew the earlier suit and distributed the land; the counterclaim, filed after the consent, rehashed the same facts and conflicts with the consent by excluding other wives and the 2nd–4th defendants. Counsel's concession waived the matrimonial property claim.

p. 6
02

Whether the plaintiff's suit stands compromised

Holding

The plaintiff's suit is deemed compromised by the consent and the orders of 24/8/2017, which merely furthered the consent's purpose

Reasoning

The consent in Kitale ELC No. 31 of 2009 withdrew that suit while providing for distribution of the land, so the plaintiff was justified in filing this suit to enforce implementation. The later orders of 24/8/2017 furthered the consent's intent. With the counterclaim struck out, the counterclaim cannot stand alone after the plaintiff's suit is marked as settled.

p. 6
03

Whether the pendency of an appeal against the orders of 24/8/2017 bars the application

Holding

No substantive appeal was demonstrated; only the old notice of appeal of 30/8/2017 was annexed

Reasoning

The respondents attached only the notice of appeal dated 30/8/2017, with no evidence of a substantive appeal or stay. In any event, the orders of 24/8/2017 did not finalise Kitale ELC No. 31 of 2009; that case was finalised by the consent of 25/11/2013.

p. 5

Legal principles established

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  • Res judicata extends to matters which might and ought to have been made a ground of defence or attack in a former suit between the same parties
  • Res judicata serves the public interest of finality in litigation
  • A claim waived by counsel's concession to a consent order cannot be revived as a new cause of action on the same facts

Court orders

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  1. 1.The defendants' counterclaim dated 28/5/2014 is struck out for being res judicata
  2. 2.A declaration that the plaintiff's suit as against the defendants stands compromised in terms of the consent orders made on 26th November 2013 and the further orders of the court made on 24th August 2017 in High Court Civil Suit No. 31 of 2009
  3. 3.Each party shall bear the costs of the suit and counterclaim

Authorities

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Legislation

  • Civil Procedure Rules (2010)Order 2 Rule 15(1)(d)
  • Civil Procedure Rules (2010)Order 51 Rule 1
  • Civil Procedure Act (Cap 21)Sections 3, 3A, 7, 8, 63(e)
  • Constitution of KenyaArticle 159(2)(b) and 159(2)(c)
  • Judicature Actnot specified

Cases cited (4)

  • Independent Electoral and Boundaries Commission -vs- Maina Kiai and 5 Others
    [2017] eKLR
  • William Koross (legal representative of Elijah C. A. Koross) -vs- Hezekiah Kiptoo Komen & 5 Others
    [2015] eKLR
  • Henderson -vs- Henderson
    [1843] 67 ER 313
  • Mburu Kinyua -vs- Gachini Tuti
    [1978] KLR 69
Jurisdiction invoked
Order 2 Rule 15(1)(d) and Order 51 Rule 1 of the Civil Procedure Rules (2010), Sections 3, 3A, 7, 8 and 63(e) of the Civil Procedure Act

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, "Nahashon Ochieng Onyango v Florence M. Onyango & 3 others [2019] KEELC 4005 (KLR)", Case Analysis (2019). Not stated in the judgment (instant suit, Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4005/eng@2019-03-28

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