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ELCDismissedKericho HCCC No. 32 of 1996 (suit concerning KERICHO/KIMULOT/514; numbered per the judgment's references)· [2020] KEELC 3284 (KLR)

Sarah Chesiele Barta v Kiplangat Barta & 2 others [2020] KEELC 3284 (KLR)

Environment and Land Court
10 February 2020
JOJ.M OnyangoAKAntony Kaniaru
1,533 words in judgment
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The bottom line

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The Environment and Land Court in Kericho dismissed a 24-year-old land dispute, ruling it had already been decided and fraud was never proved.

What this practically means

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Executive summary

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The plaintiff, a woman over 90 years old, sued the defendants alleging that the 1st defendant connived with the 2nd defendant to fraudulently sub-divide her land parcel KERICHO/KIMULOT/514 into two parcels, 1551 and 1552, with the 1st defendant registered over parcel 1551 and the plaintiff over parcel 1552. She sought rectification of the register and cancellation of the two titles so the land would revert to its original title in her name. The 1st defendant denied the claim and asserted res judicata; his preliminary objection on that ground was dismissed and the suit proceeded to hearing. The court framed four issues: res judicata, whether the sub-division was fraudulent, entitlement to reliefs, and costs. It found that the 1st defendant had previously sued the plaintiff in HCCC No. 32 of 1996 over a half share of the same parcel; by consent the matter was referred to arbitration, and the award directing division of the land into two equal portions was upheld by the court on 26th March 2011 and never overturned. Relying on Joshua Ngartu v Jane Mpinda and Omondi v National Bank, the court held that adding defendants and framing the claim in fraud could not evade res judicata. In the alternative, it held that the plaintiff failed to prove fraud, the sub-division having been done pursuant to the court's decision, and fraud being a serious allegation requiring proof above a balance of probabilities per Arthi Highway Developers. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata as it concerns the same parties and subject matter already determined in HCCC No. 32 of 1996 by an arbitration award upheld by the court on 26th March 2011.

Reasoning

The 1st defendant had earlier sued the plaintiff for a declaration of half share in KERICHO/MULOT/514. By consent the matter went to arbitration and the award directed division of the parcel into two equal portions between the same parties; the award was upheld and never overturned. The only differences are the addition of two defendants and the framing of the claim in fraud. Adding parties or causes of action cannot defeat res judicata.

p. 2
02

Proof of fraud

Holding

The plaintiff failed to prove the alleged fraud; the sub-division was done pursuant to a court decision, and dissatisfaction with that decision, without an appeal, cannot found a fraud claim.

Reasoning

Though fraud was pleaded with particulars, the plaintiff's evidence was insufficient. By her own admission the sub-division followed the court's decision in HCCC No. 32 of 1996. Fraud must be distinctly alleged and proved to a standard above a balance of probabilities; general allegations are insufficient. Having not appealed the earlier judgment, she cannot allege the sub-division was fraudulent.

p. 2

Legal principles established

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  • Parties cannot evade the doctrine of res judicata by adding other parties or causes of action in a subsequent suit.
  • Allegations of fraud must be distinctly pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt.
  • A party dissatisfied with a decision who fails to appeal cannot later allege that the implementation of that decision was fraudulent.

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Cases cited (6)

  • Joshua Ngartu v Jane Mpinda & 3 Others
    (2019) eKLR
  • Attorney General & Another v ET
    (2012) eKLR
  • Omondi v National Bank & Others
    (2001) EA 177
  • Njanju v Wambugu & Another
    HCCC No. 2430 of 1991 (unreported)
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Kiplangat A Barta v Sarah Chesiele Barta
    HCCC No. 32 of 1996
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Sarah Chesiele Barta v Kiplangat Barta & 2 others [2020] KEELC 3284 (KLR)", Case Analysis (2020). Kericho HCCC No. 32 of 1996 (suit concerning KERICHO/KIMULOT/514; numbered per the judgment's references). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3284/eng@2020-02-10

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