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ELCStruck OutELC Case No. 347 of 2014· [2020] KEELC 3558 (KLR)

Thomas Indangasi v William Mudanya Idambo [2020] KEELC 3558 (KLR)

Environment and Land Court
18 February 2020
NMN.A. Matheka
1,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's eviction suit was struck out because the same land dispute had already been decided in earlier court cases.

What this practically means

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Executive summary

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The plaintiff, claiming to be the registered proprietor of land parcel Tiriki/Hamisi/'A'/311, sued the defendant for eviction, costs and any other relief. He traced his title to a sale of the land in 1998 by the defendant and his siblings, a decree for refund of the purchase price of Ksh. 180,360 in Kakamega CMCC No. 320 of 2000, a citation in Kakamega High Court Citation Cause No. 23 of 2006, and a succession cause, Kakamega HCCC No. 756 of 2007, pursuant to which the land was transmitted to him on 11th August 2009. The defendant denied the plaintiff's registration, alleged any registration was procured fraudulently and without reference to him or his family, disclaimed knowledge of the earlier proceedings, and indicated an intention to apply to stay the suit and revoke the grant in the succession cause. The defendant did not attend court to give oral evidence. The court, of its own framing, treated the question whether the suit was res judicata or sub judice as a preliminary issue to be resolved before the merits. Applying Sections 6 and 7 of the Civil Procedure Act, Cap 21, and perusing the proceedings of the earlier cases produced as exhibits, the judge found the parties and subject matter similar and held the suit res judicata Kakamega CMCC No. 320 of 2000 and Kakamega HCCC No. 756 of 2007. The suit was struck off with no orders as to costs.

Key legal issues

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01

Res judicata / sub judice

Holding

The suit is res judicata the earlier CMCC No. 320 of 2000 and Succession Cause No. 756 of 2007, as parties and subject matter are the same, and the suit was struck out

Reasoning

The court treated the res judicata question as a preliminary issue to be determined before the merits. It applied Sections 6 and 7 of the Civil Procedure Act, Cap 21, quoted in full. On perusing the proceedings of the earlier cases produced as exhibits, the court found the parties and subject matter similar. Since the issues had been litigated and finally decided in the earlier competent proceedings, the suit could not proceed and was struck off.

p. 3

Legal principles established

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  • A suit whose matter is directly and substantially in issue in a former suit between the same parties litigating under the same title, which was heard and finally decided by a competent court, is res judicata and must be struck out under Sections 6 and 7 of the Civil Procedure Act

Court orders

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  1. 1.The suit is struck off
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction (not expressly stated in judgment)

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, "Thomas Indangasi v William Mudanya Idambo [2020] KEELC 3558 (KLR)", Case Analysis (2020). ELC Case No. 347 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3558/eng@2020-02-18

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