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ELCDismissedEldoret High Court Civil Suit (case number not stated in judgment)· [2019] KEELC 4147 (KLR)

Sarah Chelangat Samoei v Musa Kipkering Kosgei & another [2019] KEELC 4147 (KLR)

High Court of Kenya
8 March 2019
AOA. Ombwayo
3,941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost an eviction case because a decades-old tribunal award, once adopted by a court, permanently settled the dispute.

What this practically means

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Executive summary

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The plaintiff, registered owner since 2010 (by transmission through succession in Eldoret High Court Succession Cause No. 302 of 2006) of land parcel Uasin Gishu/Tapsagoi Scheme/164, sued her brother-in-law and sister-in-law for eviction, a permanent injunction and mesne profits, alleging trespass. The defendants asserted that their families had occupied the land since the 1970s; a dispute over it had been determined in the mid-1980s by a Land Disputes Tribunal/District Officer's arbitration, whose award partitioning the land between the three brothers (Henry Samoei 8.5 acres, Musa Kosgei 7 acres, David Kirwa 7 acres) was adopted as judgment of the magistrates' court (Eldoret S.R.M. Award No. 81 of 1986). They further pleaded res judicata, abuse of process (a pending suit, Eldoret CMCC No. 201 of 2011, between the same parties), and misrepresentation and non-disclosure in the succession cause, for which revocation was sought elsewhere. The plaintiff testified as registered owner; the defendants gave evidence of occupation and produced the skeleton tribunal file. The court held it had no jurisdiction to pronounce on the regularity of the succession proceedings, which belonged to the High Court's succession jurisdiction. It further held that the adopted tribunal award had finalized the dispute between the parties, making the suit res judicata under Section 7 of the Civil Procedure Act; the plaintiff had not pursued the statutory appeal to the Appeals Committee or judicial review to quash the award, and a fresh suit for eviction and injunction was a procedure unknown in law after such judgment. The suit was dismissed with costs.

Key legal issues

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01

Res judicata arising from an adopted Land Disputes Tribunal award

Holding

The suit is res judicata because the ownership dispute was determined by the Tribunal, the award was adopted as judgment by a competent magistrates' court, and the plaintiff never challenged it by the statutory appeal or judicial review

Reasoning

Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties before a competent court. The Tribunal award of 1986 partitioning the land was adopted as judgment, finalizing the dispute. The plaintiff failed to use the appeal mechanism under section 8 of the repealed Act or judicial review to quash the award, and cannot reopen the matter by a fresh suit.

p. 3
02

Jurisdiction over challenges to the succession proceedings

Holding

This court lacks jurisdiction to declare the succession cause irregular; that power lies with the High Court in its succession jurisdiction

Reasoning

The defendants attacked the grant issued in Eldoret High Court Succession Cause No. 302 of 2006 for misrepresentation and non-disclosure. The court held that any declaration on the regularity of succession proceedings belongs to the High Court's probate jurisdiction and this court cannot supervise the High Court.

p. 3

Legal principles established

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  • Adoption of a Land Disputes Tribunal award as a judgment of the magistrates' court finalizes the dispute between the parties and renders a fresh suit over the same subject matter res judicata
  • A magistrates' court's role upon filing of a tribunal award is merely to adopt it as judgment; it cannot examine the award's legality
  • A party aggrieved by a tribunal award must appeal to the Appeals Committee or seek judicial review; a fresh suit is not a recognized avenue

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Disputes Tribunal Act (repealed)Sections 7(1), 8(1)-(8)

Cases cited (7)

  • E.T. v Attorney General & another
    [2012] eKLR
  • Omondi v National Bank of Kenya Limited & others
    [2001] EA 177
  • Gurbacham v Yowani Ekori
    [1958] EA 450
  • Henderson v Henderson
    67 E.R. 313
  • HCCC No. 139 of 2009 (Kisii)
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 Others
    [2014] eKLR
  • Paul Muraya Kaguri v Simon Mbaria Muchunu
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court over land claims (subject to limitation on revisiting succession and adopted tribunal awards)

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, "Sarah Chelangat Samoei v Musa Kipkering Kosgei & another [2019] KEELC 4147 (KLR)", Case Analysis (2019). Eldoret High Court Civil Suit (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4147/eng@2019-03-08

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