Nahashon Ochieng Onyango v Florence M. Onyango & 3 others [2019] KEELC 4005 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the counterclaim claiming the suit land as matrimonial property is res judicata
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
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.
Whether the plaintiff's suit stands compromised
The plaintiff's suit is deemed compromised by the consent and the orders of 24/8/2017, which merely furthered the consent's purpose
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.
Whether the pendency of an appeal against the orders of 24/8/2017 bars the application
No substantive appeal was demonstrated; only the old notice of appeal of 30/8/2017 was annexed
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.
Legal principles established
#- 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
#- 1.The defendants' counterclaim dated 28/5/2014 is struck out for being res judicata
- 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.Each party shall bear the costs of the suit and counterclaim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.