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ELCDismissedNot stated in the judgment (notice of motion dated 24/5/2018 filed by the 5th defendant in a suit before the Environment and Land Court, Kitale)· [2019] KEELC 4204 (KLR)

Kitale Chepkoror Farm v Peter Nasasa & 4 others [2019] KEELC 4204 (KLR)

Environment and Land Court of Kenya
21 March 2019
MNMwangi Njoroge
1,353 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a land beneficiaries' suit, holding res judicata only applies when the issues and parties match earlier cases.

What this practically means

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Executive summary

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The 5th defendant filed a notice of motion dated 24/5/2018 under Section 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010, seeking to strike out the plaintiff's suit as res judicata. The applicant contended that the issues had been determined in Kakamega High Court Misc. Application No. 42 of 1995 (order of 22/2/1996 on mode of distribution after the Saboti/Kwanza Land Control Board consent of 27/6/1994 was not effected) and Misc. Application No. 65 of 1998 (mandamus order of 23/7/1998), both concerning subdivision of L.R. 5777/3 Chepkorok Farm. The plaintiff, through director Felix Kipkemboi Biwot, opposed, conceding subdivision had been decided but asserting the present suit concerns a trust claim - who the real beneficiaries are - and interference by the 1st, 2nd and 3rd defendants with the transfer of 126 portions to beneficiaries, opposed on claims the land should benefit 856 persons. Justice Mwangi Njoroge set out Section 7 of the Civil Procedure Act, adopted the five-limb test from Bernard Mugo Ndegwa v James Nderitu Githae, and cited Henderson v Henderson. Since all parties agreed the previous suits concerned subdivision while the present suit concerns identification of beneficiaries, the elements of identity of issues and claim were not satisfied. The application was dismissed with costs to the respondent/plaintiff on 21 March 2019 at Kitale.

Key legal issues

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Whether the suit is res judicata by virtue of Kakamega High Court Misc. Application Nos. 42 of 1995 and 65 of 1998

Holding

The plea of res judicata fails because the issues in the instant suit (trust/real beneficiaries of the subdivided portions) are different from those previously determined (mode of subdivision of L.R. 5777/3)

Reasoning

The court applied the five-limb test from Bernard Mugo Ndegwa and the Henderson v Henderson res judicata doctrine. All parties conceded the earlier suits dealt with subdivision of Chepkorok Farm LR 5777/3. The plaintiff's pleadings (paragraphs 7-10) show the present suit concerns interference with the transfer of 126 portions to beneficiaries and a claim of trust, which were never heard before. The elements of identity of issues and claim were therefore not met.

p. 2

Legal principles established

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  • The test for res judicata requires identity of matter in issue, sameness of parties, sameness of title/claim, concurrence of jurisdiction and finality of the previous decision
  • Res judicata does not apply where the issues in the subsequent suit are different from those determined in the former suits

Court orders

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  1. 1.The plea of res judicata raised by the defendants is rejected and dismissed
  2. 2.Costs of the application awarded to the respondent/plaintiff

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (2)

  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • HENDERSON VS HENDERSON
    (1843-60) ALL E.R.378
Jurisdiction invoked
Original civil jurisdiction; application under Section 7 of the Civil Procedure Act, Cap 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kitale Chepkoror Farm v Peter Nasasa & 4 others [2019] KEELC 4204 (KLR)", Case Analysis (2019). Not stated in the judgment (notice of motion dated 24/5/2018 filed by the 5th defendant in a suit before the Environment and Land Court, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4204/eng@2019-03-21

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