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ELCDismissedNot stated in the judgment· [2020] KEELC 444 (KLR)

Daniel Masila Mutiso v Reuben Munyao & 8 others [2020] KEELC 444 (KLR)

Environment and Land Court
20 November 2020
OAO. A. Angote
1,820 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 revive a land judgment, ruling you cannot ask for the same order twice even with new arguments.

What this practically means

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Executive summary

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The Defendants/Applicants moved the court by Notice of Motion seeking to set aside the ex-parte judgment entered on 10th July, 2017, contending that their then advocates, F.N. Mulwa & Co Advocates, failed to inform them of the hearing date, that they had resided on the suit land for almost four decades, and that their defence raised triable issues. They relied on Order 12 Rule 7 of the Civil Procedure Rules and authorities on the principle that a mistake of counsel should not be visited on innocent litigants. The Plaintiff/Respondent opposed, contending the application was res judicata because it was identical to an application dated 19th April, 2018 which was dismissed by a Ruling delivered on 16th November, 2018, against which the Defendants had filed a Notice of Appeal. The court framed two issues: whether the application was res judicata, and if not, whether the judgment should be set aside. Applying Section 7 of the Civil Procedure Act and the Henderson v. Henderson principle as adopted in Kenyan authority, the court found that the issues and parties in both applications were the same - both sought to set aside the same judgment on the ground of the advocate's failure to notify the Defendants of the hearing. The Defendants did not submit on the res judicata objection. Holding the application res judicata, the court dismissed it with costs. The Defendants' substantive prayer to set aside the judgment was therefore refused, with the earlier Ruling of 16th November, 2018 left undisturbed.

Key legal issues

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01

Res judicata

Holding

The Application dated 26th March, 2019 was res judicata the Application dated 19th April, 2018, since both sought the same relief (setting aside the 10th July, 2017 judgment) between the same parties on the same issue of non-attendance due to advocate's failure to notify.

Reasoning

The court applied Section 7 of the Civil Procedure Act and the doctrine in Henderson v. Henderson, holding that the plea of res judicata extends not only to points actually determined but to every point which properly belonged to the subject of litigation and which reasonable diligence would have brought forward. The earlier Ruling of 16th November, 2018 had dismissed a similar application on the same ground (advocate's failure to inform Defendants of the hearing date). Since the Applicants did not submit on the res judicata objection, and the issues and parties were identical, the application was barred.

p. 3

Legal principles established

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  • The elements of res judicata are conjunctive rather than disjunctive, and the doctrine serves the public interest in finality of litigation.
  • A party cannot reopen a matter already adjudicated even on different grounds which could have been raised in the earlier application.

Court orders

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  1. 1.The Application dated 26th March, 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (9)

  • Mbogo vs. Shah
    [1968] EA 93
  • Belinda Murai & others vs. Amoi Wainaina
    (1978) LLR 2782 (CALL)
  • Harrison Wanjohi Wambugu vs. Felista Wairimu Chege & another
    (2013) eKLR
  • Kenya Commercial Bank Limited vs. Benjoh Amalgamated Limited & Another
    (2017) eKLR
  • Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 others
    (2007) eKLR
  • Mburu Kinyua vs. Gachini Tutu
    (1978) KLR 69
  • William Koross vs. Hezekiah Kiptoo Komen & 4 others
    (2015) eKLR
  • Lal Chand vs. Radha Kisham
    AIR 1977 SC 789
  • Henderson vs. Henderson
    (1843) 67 ER 313
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7, 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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Cite this brief

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Cite this brief

Caselaw, "Daniel Masila Mutiso v Reuben Munyao & 8 others [2020] KEELC 444 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/444/eng@2020-11-20

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