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ELCPartially AllowedBungoma ELC Case (plaint dated 10th February 2020)· [2020] KEELC 1879 (KLR)

Wensley Barasa v Immaculate Awino Abongo & another [2020] KEELC 1879 (KLR)

Environment and Land Court
26 June 2020
BOBoaz N. Olao
5,329 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out the claim against the original owner but stopped the new buyer from building until trial.

What this practically means

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Executive summary

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The plaintiff, Wensley Barasa, sued Immaculate Awino Abongo (1st defendant) and Sabastian Bubiru (2nd defendant) over land parcel East Bukusu/South Kanduyi/5778, seeking a declaration that the 2nd defendant holds title in trust for him, cancellation and transfer of the title, and eviction, together with a Notice of Motion for a temporary injunction. Simultaneously, both defendants filed Preliminary Objections asserting that the suit was sub-judice, res judicata earlier suits, and that the court lacked jurisdiction. The court first tested the objections against the Mukisa Biscuit principle and found they raised pure points of law. It held that sub-judice did not apply because none of the cited suits was still pending. On res judicata, it adopted the view that a suit dismissed for want of prosecution or jurisdiction is not 'heard and finally decided' within Section 7 of the Civil Procedure Act; the only suit decided on the merits was Bungoma H.C.C.C No 93 of 2011, which ended in the Court of Appeal (Kisumu CA Appeal No 115 of 2015) between the plaintiff and the 1st defendant alone, in which the plaintiff's overriding interest by long occupation was recognised. Res judicata was therefore upheld against the 1st defendant and her suit was struck out with costs, but it failed against the 2nd defendant, who was not party to the earlier litigation, and the jurisdictional objection also failed. Applying Giella and Mrao, the court found a prima facie case, potential irreparable harm from the 2nd defendant's multimillion-shilling construction, and balance of convenience favouring the plaintiff, and granted a temporary injunction restraining the 2nd defendant pending trial. Costs were put in the cause and the suit was directed to be heard within twelve months.

Key legal issues

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01

Whether the Preliminary Objections were properly raised

Holding

They met the Mukisa Biscuit test as they raised pure points of law based on uncontested previous suits

Reasoning

The court applied the Mukisa Biscuit and Oraro v Mbaja tests, noting the objections raised sub-judice, res judicata and jurisdiction - all pure points of law founded on previous litigation that was not contested, so they could properly be determined without ascertaining facts.

p. 4
02

Sub-judice

Holding

The bar of sub-judice was not invoked as none of the cited suits is pending

Reasoning

Section 6 of the Civil Procedure Act bars trial only where the matter is in issue in a previously instituted pending suit. All cited suits had been determined, dismissed for want of prosecution, dismissed for want of jurisdiction or withdrawn, so sub-judice did not apply.

p. 4
03

Res judicata against the 1st defendant

Holding

Upheld: ownership as between plaintiff and 1st defendant was conclusively determined by the Court of Appeal

Reasoning

The only previous suit heard and finally decided was Bungoma H.C.C.C No 93 of 2011, culminating in Kisumu CA Appeal No 115 of 2015, between the plaintiff and the 1st defendant over the same property, in which the Court of Appeal found the plaintiff held an overriding interest. No further remedy lies against her.

p. 5
04

Res judicata against the 2nd defendant

Holding

Not available; he was not a party to, and did not claim under parties in, the previous suits

Reasoning

The 2nd defendant did not feature in either the trial or appellate judgment, and no party litigated under him. The pleadings in this suit differ from the earlier ones, so the dispute between the plaintiff and the 2nd defendant was never judicially determined. His preliminary objection was dismissed.

p. 6
05

Jurisdiction of the ELC

Holding

Section 13 of the ELC Act confers jurisdiction and the previous cases pose no bar

Reasoning

The 2nd defendant argued the court lacked jurisdiction given the previous decisions. The court found nothing contravening Section 13 of the ELC Act and, having already found the previous cases were no bar, dismissed the jurisdictional objection.

p. 6
06

Temporary injunction against the 2nd defendant

Holding

Granted; a prima facie case, irreparable injury and balance of convenience favour the plaintiff

Reasoning

Applying Giella and Mrao, the court found the plaintiff's alleged overriding interest by occupation since 1987 an apparent right infringed by the 2nd defendant's development; millions of shillings invested would change the property's character, constituting irreparable harm, and the balance of convenience favoured preservation of the property.

p. 6

Legal principles established

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  • A Preliminary Objection must be founded on a pure point of law and cannot be raised where facts have to be ascertained or judicial discretion exercised
  • The sub-judice rule under Section 6 of the Civil Procedure Act applies only where a previously instituted suit is still pending
  • Res judicata under Section 7 of the Civil Procedure Act requires that the former suit was heard and finally decided on the merits; a dismissal for want of prosecution or jurisdiction does not qualify
  • Res judicata cannot be invoked by or against a party who was not party to, and does not claim under the parties of, the former suit
  • Registration under the Land Registration Act does not relieve a proprietor of obligations arising as trustee; overriding interests of a possessor may subsist

Court orders

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  1. 1.The suit against the 1st defendant is struck out with costs
  2. 2.An order of temporary injunction is issued restraining the 2nd defendant from intermeddling, trespassing, constructing on or occupying the suit property pending the hearing and determination of this suit
  3. 3.Costs shall be in the cause
  4. 4.The parties are directed to comply with all the pre-trial directions so that this suit is heard and determined within 12 months from the date of delivery of this ruling as provided in Order 40 Rule 6 of the Civil Procedure Rules

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 3, 3A and 63(1)
  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 40 Rule 6
  • Environment and Land Court ActSection 13
  • Environment and Land Court ActSection 19(1)
  • Land Registration ActSection 25(2)
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (10)

  • MUKISA BISCUIT MANUFACTURING CO LTD v WEST END DISTRIBUTORS LTD
    1969 E.A 696
  • ORARO v MBAJA
    2005 eKLR
  • SALEM AHMED ZAIDI v FAUD HUMEIDAN
    1960 E.A 92
  • THOMAS K. SAMBU v PAUL K. CHEPKWONY
    2018 eKLR
  • MICHAEL BETT SIBOR v JACKSON KOECH
    C.A Civil Appeal No 83 of 2016 [2019 eKLR]
  • THE TEE GEE ELECTRICAL & PLASTIC CO v KENYA INDUSTRIAL ESTATES LTD
    C.A Civil Appeal No 333 of 2001 [2005 2KLR 97]
  • CANELAND LTD & OTHERS v DELPHIS BANK LTD
    C.A. Civil Appeal No 20 of 2000
  • GIELLA v CASSMAN BROWN & CO LTD
    1973 E.A 358
  • MRAO v FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A Civil Appeal No 39 of 2002
  • FILMS ROVER INTERNATIONAL v CANNON FILMS SALES LTD
    1986 3 All. E.R 776
Jurisdiction invoked
Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wensley Barasa v Immaculate Awino Abongo & another [2020] KEELC 1879 (KLR)", Case Analysis (2020). Bungoma ELC Case (plaint dated 10th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1879/eng@2020-06-26

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