Stephen Oloo Afwande v John Francis Muyodi & another [2020] KEELC 1805 (KLR)
The bottom line
#A Busia court dismissed a family's claim to 30 acres, ruling the same dispute had already been decided and the trust claim was never properly proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata Kakamega HCC 38 of 1992
The suit is res judicata; the former suit was between the same parties over the same subject matter, before a court of competent jurisdiction, and the dismissal of the plaintiff's case and determination of the counter-claim amounted to a hearing on the merits.
Section 7 of the Civil Procedure Act requires the same parties, same subject matter, competent jurisdiction and determination on merits. The former suit before Tanui J was dismissed with costs after the plaintiff's adjournment application was refused, and the defendants' counter-claim proceeded to full hearing and judgment, which was never set aside or appealed. Hearing on the counter-claim satisfied the merits requirement.
Whether a customary trust existed between Afwande Wanabwoba and Lawrende Ongoma
The plaintiff failed to discharge the burden of proving the customary trust; his corroborating witness's evidence was hearsay and none of his siblings or elders testified to occupation of the 30 acres.
Trust is an equitable remedy that must be proved by facts. PW1 admitted no demarcation had occurred when his father died and disclaimed clan relations with the first registered owner, undermining the trust claim. PW2 was born after Afwande's death and his knowledge was hearsay. Following Waititu and Waruhiu, trust must be proved with cogent evidence of family or clan land held for the benefit of the claimant.
Whether the first registration of Lawrende Ongoma was tainted by fraud
The registration was a first registration not faulted on account of fraud; the fraud allegation was not specifically pleaded or proved.
The applicant alleged the deceased used his position as senior chief to extend boundaries and acquire the land, but did not ascertain the outcome of the objection proceedings by his brother and adduced no proof of fraud. Fraud must be specifically pleaded and proved to a high degree of probability per Hatil G. Patel v Lalji Makan.
Legal principles established
#- A counter-claim heard and determined on the merits renders a subsequent suit over the same subject matter between the same parties res judicata; a court of concurrent jurisdiction cannot question the capacity of parties in the former suit.
- A customary trust must be proved by cogent evidence and cannot be imputed.
- Allegations of fraud must be specifically pleaded and proved on a high degree of probability.
Court orders
#- 1.Dismissal of the suit both for want of proof and for being res judicata Kakamega HCC 38 of 1992
- 2.Costs of the suit awarded to the Defendant/Respondent
- Jurisdiction invoked
- Environment and Land Court; Originating Summons under Order 37 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Christopher Jakonya Asika & another v Charles Opondo Oyenga & another [2021] KEELC 3575 (KLR)[2021] KEELC 3575 (KLR)29 Apr 2021
Cite this brief
#Cite this brief
Caselaw, "Stephen Oloo Afwande v John Francis Muyodi & another [2020] KEELC 1805 (KLR)", Case Analysis (2020). Civil Case No. 124 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1805/eng@2020-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.