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ELCStruck OutELC Case No. 82 of 2019· [2020] KEELC 3522 (KLR)

Michael Mugera Kihugwa & another v Hesbon Obote Vikiru [2020] KEELC 3522 (KLR)

Environment and Land Court
20 February 2020
NMN.A. Matheka
819 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land claim because the same dispute had already been decided in an earlier High Court case between the same parties.

What this practically means

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Executive summary

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The plaintiffs sued the defendant in the Environment and Land Court at Kakamega seeking declarations that land parcel L.R. Kakamega/Kegoye/35 (approximately 0.32 ha) is held in trust for them, that they acquired ownership by adverse possession, that Birisira Mideva Ubwayo's interest had been extinguished and could not validly transfer the land to the defendant, and orders for transfer of the land to them with the Deputy Registrar authorised to execute transfer documents in default. In evidence, the plaintiffs testified they had resided on the land since 1973 when it was registered in the name of Lubai Cheieri, and that disputes over the land had gone through the Vihiga Division Land Disputes Tribunal (Case No. 46 of 2010), whose award was adopted in Vihiga SRM Misc Application No. 32 of 2010, then through the Provincial Land Disputes Appeals Committee, and finally to the High Court in HCCC No. 177 of 2010, which the defendant won. The defendant testified he inherited and was transferred the land in 2006 and was awarded it by the High Court. The court identified res judicata as a preliminary issue to be determined before the merits. Applying Sections 6 and 7 of the Civil Procedure Act, Cap 21, the court found the parties and subject matter identical to HCCC No. 177 of 2010, held the suit res judicata, struck out the suit with costs to the defendant. The adverse possession and trust claims were never determined on the merits.

Key legal issues

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01

Whether the suit is barred by res judicata

Holding

Yes - the suit is res judicata Kakamega High Court HCCC No. 177 of 2010 and was struck out

Reasoning

The court found that the Vihiga Division Land Disputes Tribunal Case No. 46 of 2010 award, adopted in Vihiga SRM Misc Application No. 32 of 2010, was appealed through the Provincial Land Disputes Appeals Committee and finally decided by the High Court in HCCC No. 177 of 2010, which the defendant won. The parties and the subject matter in the present suit are the same. Res judicata is a preliminary issue to be determined before the merits, so the court did not reach the adverse possession claim.

p. 2

Legal principles established

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  • A suit whose matter is directly and substantially in issue in a previously determined suit between the same parties is res judicata under Sections 6 and 7 of the Civil Procedure Act and must be struck out.

Court orders

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  1. 1.This suit is struck off with costs to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction over claims relating to land parcel L.R. Kakamega/Kegoye/35 (adverse possession and trust claims)

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, "Michael Mugera Kihugwa & another v Hesbon Obote Vikiru [2020] KEELC 3522 (KLR)", Case Analysis (2020). ELC Case No. 82 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3522/eng@2020-02-20

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