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ELCStruck OutELC No. 245 of 2017· [2020] KEELC 2359 (KLR)

Maurice Olwal Olwal v Michael Otieno Wagude & another [2020] KEELC 2359 (KLR)

Environment and Land Court
22 May 2020
AOA.O. Ombwayo
389 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kisumu court struck out a second land case between the same parties, ruling you cannot re-litigate ownership a court has already decided.

What this practically means

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Executive summary

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By a preliminary objection dated 17th September 2018, the defendant in ELC No. 245 of 2017 argued that the suit was res judicata, that the plaintiff lacked locus standi, and that he was meddling with the property of a deceased person. The defendant relied on ELC No. 13 of 2015, in which the same parties litigated under the same title before a competent court. The plaintiff countered that the two suits presented different causes of action - one based on eviction and the other on fraud. The court, per A.O. Ombwayo J, compared the two suits and found that in ELC No. 13 of 2015 the same disputants litigated ownership of parcel Kisumu/Dago/566, in which the court found the plaintiff therein to be the absolute and indefeasible owner with no challenge to title mounted. In the present suit, the same parties again dispute ownership of the same parcel, with the roles reversed. The court held that the ownership issues in suit No. 245 of 2017 ought to have been raised in ELC No. 13 of 2015 and were technically determined there; the plaintiff had returned to the same court that had already determined ownership of the same property. The suit was accordingly found to be res judicata and an abuse of court process and was struck out, with costs awarded to the defendant. The judgment was delivered electronically pursuant to COVID-19 court operation measures with the consent of the parties.

Key legal issues

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01

Whether the suit is res judicata in light of ELC No. 13 of 2015

Holding

The suit is res judicata as the same parties litigated ownership of Kisumu/Dago/566 in ELC No. 13 of 2015, where the court found the plaintiff therein to be the absolute and indefeasible owner

Reasoning

The parties in ELC No. 245 of 2017 were the same as in ELC No. 13 of 2015, albeit with roles reversed. Both disputes revolved on ownership of parcel Kisumu/Dago/566. In the earlier suit the court declared Michael Otieno Wagunde the absolute and indefeasible owner with no challenge to title mounted. The ownership issues in the present suit ought to have been raised in the earlier suit and were therefore technically determined. Filing the same claim before the same court renders the suit res judicata and an abuse of process.

p. 2

Legal principles established

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  • A subsequent suit between the same parties over the same subject matter and cause of action that should have been raised in earlier litigation is res judicata

Court orders

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  1. 1.The suit is struck out as res judicata and an abuse of court process
  2. 2.Costs to the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership of land (parcel Kisumu/Dago/566)

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, "Maurice Olwal Olwal v Michael Otieno Wagude & another [2020] KEELC 2359 (KLR)", Case Analysis (2020). ELC No. 245 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2359/eng@2020-05-22

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