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ELCDismissedMigori ELCC No. 31 of 2019· [2020] KEELC 1081 (KLR)

George Loch Mboya v Florence Murunga Okea & 4 others [2020] KEELC 1081 (KLR)

Environment and Land Court of Kenya
22 September 2020
GOG. M. A. Ongondo
2,037 words in judgment
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The bottom line

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A Migori court threw out a landowner's second attempt to reclaim Plot No. 24 Migori, ruling it had already been decided and was filed too late.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Migori determined a preliminary objection dated 12th June 2019 raised by the 1st, 3rd and 4th defendants against the plaintiff's entire suit, including his Notice of Motion dated 29th April 2020 seeking conservatory orders. The plaintiff, appearing in person, claimed he was the registered owner of Plot No. 24 Migori Town and sued for declarations that its transfer to the 1st and 2nd defendants and subsequent disposal to the 3rd and 4th defendants was fraudulent and illegal, and for its retransfer to him. The objection asserted that ownership of the plot had been adjudicated in Kisumu Court of Appeal Civil Appeal No. 199 of 2001 and in Migori HC Succession Cause No. 95 of 2015, rendering the suit res judicata under Section 7 of the Civil Procedure Act, statute barred under the Limitation of Actions Act, an impermissible appeal over a probate decision, and an abuse of process. The court found that the issue of ownership had been determined on merits in the prior appeal (whose review application was dismissed on 16th December 2016) and in the succession cause ruling of 4th March 2020. It held the suit res judicata, contrary to Sections 4 and 7 of the Limitation of Actions Act, misconceived, incompetent and an abuse of process. The court applied Kakuta Maimai Hamisi vs Peris Pesi Tobiko on the nature of preliminary objections, upheld the objection, and dismissed the suit with costs to the defendants.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata because ownership of Plot No. 24 Migori Town was determined on merits in Kisumu Court of Appeal Civil Appeal No. 199 of 2001 and in Migori HC Succession Cause No. 95 of 2015

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, heard and finally decided by a competent court. The same suit property was the subject of the earlier appeal and the succession cause, and the definitions in Black's Law Dictionary and the Concise Oxford English Dictionary confirm the essential elements were met.

p. 3
02

Whether the suit is statute barred and an abuse of process

Holding

The claim founded on fraud and to recover land contravenes Sections 4 and 7 of the Limitation of Actions Act and is an abuse of the process of the court

Reasoning

Once res judicata is established, the suit contravenes the limitation provisions governing actions in tort and for recovery of land. The suit is therefore misconceived, incompetent, untenable and an abuse of process, applying Muchanga Investments Ltd vs Safaris Unlimited (Africa) Limited and 2 others (2009)eKLR.

p. 3
03

Whether the preliminary objection meets the threshold of a pure point of law

Holding

The preliminary objection is meritorious and is upheld

Reasoning

Applying Kakuta Maimai Hamisi vs Peris Pesi Tobiko and 2 others (2013)eKLR, a preliminary objection is a threshold question best taken at inception requiring a definitive and prompt pronouncement. The objection rested on points of law (res judicata, limitation, abuse of process) and met that threshold.

p. 3

Legal principles established

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  • A matter adjudicated on merits between the same parties in a competent court is res judicata and may not be pursued further
  • A preliminary objection is a threshold question best taken at inception, calling for a definitive, determinative and prompt pronouncement
  • Litigation must come to an end notwithstanding constitutional guarantees of access to justice

Court orders

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  1. 1.The plaintiff's suit mounted by way of a plaint dated 29th April 2019 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 3A
  • Limitation of Actions ActSections 4 and 7
  • Environment and Land Court Act, 2015Sections 3 and 19
  • Constitution of Kenya, 2010Articles 6(3), 7(3)(b), 25(c), 48, 50(1), 159(2)(a), (b), (d) and (e)

Cases cited (6)

  • George Loch Mboya Ogola vs Elisha Okea and Town Council of Migori
    Kisumu Court of Appeal Civil Appeal No. 199 of 2001
  • Esther Gachambi Mwangi vs Samwel Mwangi Mbiri
    (2013)eKLR
  • Republic v Business Premises Rent Tribunal and another and ex-parte Davies Motor Corporation Limited
    (2013)eKLR
  • Daniel Kirui and another vs Monicah W. Macharia and another
    (2007)eKLR
  • Muchanga Investements Ltd vs Safaris Unlimited (Africa) Limited and 2 others
    (2009)eKLR
  • Kakuta MaiMai Hamisi vs Peris Pesi Tobiko and 2 others
    (2013)eKLR
Jurisdiction invoked
Articles 7(3)(b), 159(2)(b) and (d) of the Constitution; Section 3A of the Civil Procedure Act; Sections 3 and 19 of the Environment and Land Court Act, 2015

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, "George Loch Mboya v Florence Murunga Okea & 4 others [2020] KEELC 1081 (KLR)", Case Analysis (2020). Migori ELCC No. 31 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1081/eng@2020-09-22

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