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ELCStruck OutNotice of Motion dated 24th July 2019, filed with suit (Environment and Land Court, Malindi)· [2020] KEELC 1012 (KLR)

Amos Moses Kombe v Omar Ahmed Omar [2020] KEELC 1012 (KLR)

Environment and Land Court
15 October 2020
JOJ.O. Olola
1,853 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his case because he sued again over a dispute a Magistrates' Court had already decided, instead of appealing the earlier judgment.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of Lawrence Ngari Yaa, filed a Notice of Motion seeking an injunction against the Defendant dealing with Plot No. Kilifi/Ngerenyi/859 and an order setting aside the ex-parte judgment and consequential orders in Kilifi PMCC No. 277 of 2012, in which the Defendant had obtained specific performance of a sale agreement against the Plaintiff's deceased father. The Defendant filed a replying affidavit maintaining he lawfully purchased six acres, took possession, and obtained a valid judgment, and raised a preliminary objection on the ground that the suit was res judicata under Section 7 of the Civil Procedure Act, the prior judgment not having been set aside on appeal or review. The court considered the objection first, noting that the plaintiff was aware of the former suit, that the same parcel and effectively the same parties (the plaintiff suing as administrator of the former defendant's estate) were involved, and that the former suit had been heard and determined by a competent court. The court held that the plaintiff's grievances could only be addressed by appeal or review, not by a fresh suit, since this Court had no jurisdiction to set aside the judgment and decree of the magistrates' court. Finding merit in the preliminary objection, the court struck out the suit as incompetent and res judicata, awarding costs to the Defendant.

Key legal issues

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01

Res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is res judicata Kilifi PMCC No. 277 of 2012 as the same subject matter between the same parties (the plaintiff claiming under the former defendant) had been heard and finally decided by a court of competent jurisdiction

Reasoning

The plaintiff's father was the defendant in the former suit; the parcel of land was the same Plot No. Kilifi/Ngerenyi/859; the former suit was heard and judgment delivered. The plaintiff sues as administrator of the estate of the former defendant, thus claiming under him. The judgment remains binding and unchallenged on appeal or review, so the present suit offends Section 7.

p. 3
02

Jurisdiction to set aside the judgment of another court

Holding

This Court has no jurisdiction to set aside the judgment and decree of the Magistrates' Court as sought in the pleadings; the plaintiff should have appealed or sought review

Reasoning

The plaintiff had grievances with the ex-parte judgment but did not approach the Kilifi court to challenge it nor appeal. A suit framed as an original claim but in substance attacking a subsisting decree is an appeal in disguise and incompetent.

p. 3

Legal principles established

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  • A suit seeking to set aside a subsisting judgment that has not been set aside on appeal or review is res judicata and an abuse of process; the proper remedy is appeal or review in the court that made the order.
  • The purpose of Section 7 of the Civil Procedure Act is to prevent multiplicity of suits and conflicting judgments between the same parties over the same subject matter.

Court orders

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  1. 1.The suit as filed by the Plaintiff is struck out as incompetent and res judicata
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction; objection premised on Section 7 of the Civil Procedure Act (res judicata)

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, "Amos Moses Kombe v Omar Ahmed Omar [2020] KEELC 1012 (KLR)", Case Analysis (2020). Notice of Motion dated 24th July 2019, filed with suit (Environment and Land Court, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1012/eng@2020-10-15

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