Joseph Okech Nyamanga v Philip Odero Makabongo & 2 others [2020] KEELC 1804 (KLR)
The bottom line
#A Kenyan landowner's challenge to a cancelled title will go to trial after the court dismissed all three attempts to throw out his case without a hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff is seized and/or possessed of the requisite locus standi to commence, maintain and/or originate the instant suit
- 2.Whether the instant suit is barred by section 7 of the Limitation of Actions Act (Cap 22)
- 3.Whether the suit is barred by the doctrine of res judicata under section 7 of the Civil Procedure Act (Cap 21)
Key legal issues
#Locus standi
The plaintiff, suing in his own name as registered proprietor and not on behalf of a deceased's estate, has locus standi; allegations that he disqualified himself in succession proceedings are factual matters for trial
The 1st defendant argued the plaintiff had disqualified himself as a beneficiary in Kisii Succession Cause No. 13 of 1997. The court noted the plaint was not lodged on behalf of a deceased's estate, so the law vesting estates in legal representatives did not defeat the claim, and the succession allegations were evidentiary matters unfit for determination on a preliminary objection.
Limitation of actions
The suit is not statute barred; the plaintiff pleaded fraud occurring on 10th April 2017 and filed suit within the period under section 4 of the Limitation of Actions Act
The 1st defendant contended the claim was time barred because title first accrued to him over 17 years earlier. The court had regard to sections 7 and 4 of the Limitation of Actions Act, the plaint's allegation of fraud on 10 April 2017, and computation-of-time provisions, concluding it could not be concluded the suit was statute barred.
Res judicata
The suit is not barred by res judicata because the dismissal of Kisii Misc. Application No. 249 of 2012 under Order 17 Rule 2(1) was not a final judgment on the merits
The 1st defendant relied on the dismissal for want of prosecution of Kisii Misc. Application No. 249 of 2012. Applying the ingredients of res judicata and the Kamunye case, the court held there was no final judgment on the merits, an essential element of the doctrine, so the suit could not be barred.
Legal principles established
#- A preliminary objection cannot succeed on facts that require ascertainment at the hearing of the suit
- The estate of a deceased person is vested in the legal representative
- Res judicata requires an earlier decision, a final judgment on the merits and the same parties or parties in privity
Court orders
#- 1.The Preliminary Objection dated 12th March 2018 is dismissed
- 2.Costs of the preliminary objection in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act (Cap 21); Sections 3 and 19 of the Environment and Land Court Act, 2015
Relief refused
#Dismissal of the plaintiff's suit as sought by the 1st defendant in the preliminary objection
All three grounds of the preliminary objection failed
Costs
Preliminary objection dismissed with costs in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To that end, it’s the finding of this court that the three (3) grounds of the preliminary objection sit on quick sand and definitely fail. Therefore, the Preliminary Objection dated 12 th March 2018 and filed on even date lacks merit. The same be and is hereby dismissed with costs in the cause.
On that score, I find that the plaintiff has locus standi to lodge the present suit.
The allegations relating to Kisii Succession No. 13 of 1997 are facts that have to be ascertained at the hearing of this suit as held in Mukisa Biscuits case (supra).
this suit is clearly not barred by res judicata as there was no final judgment on the merits in the instant matter.
Issues in the judgment
#The judgment attributes to the plaintiff the submission that 'the 1st defendant is entitled to commence this suit', apparently referring to the plaintiff
The authorities cited in submissions are recorded inconsistently as 'Muruo Matemu' and later 'Mumo Matamu'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Okech Nyamanga v Philip Odero Makabongo & 2 others [2020] KEELC 1804 (KLR)", Case Analysis (2020). ELC Suit (Migori), plaint dated 27 October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1804/eng@2020-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.