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ELCDismissedE.L.C.A. Case No. 19 of 2019· [2020] KEELC 3714 (KLR)

Mariko Ndwiga v Edith Muthanje [2020] KEELC 3714 (KLR)

Environment and Land Court at Embu
16 January 2020
3,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Embu against the judgment of Hon. M.N. Gicheru (CM) dated 24 June 2019 in Embu CMCC No. 119 of 2018, which had dismissed the Appellant's 1995 claim for recovery of Title No. Kyeni/Kigumo/398, founded on Aembu customary law and Runyenjes Succession Cause No. 86 of 1977. The Appellant raised eight grounds, condensed by the court into three: the mode of trial (disposal on witness statements and documents without calling witnesses or document makers), whether the suit was dismissed solely on res judicata, and the trial court's evaluation of evidence. The court applied the established principles governing first appeals from Selle v Associated Motor Boat Co., Peters v Sunday Post and Watt v Thomas. It found no merit in the complaint about the mode of trial: the directions under Order 11 Rule 2(c) were made in the parties' presence, unobjected to, and no prejudice was shown. It held the suit was not dismissed solely on res judicata; the bar embraced abuse of process too. Re-evaluating the record, the court traced litigation since 1977 in which the Appellant and his father conclusively lost the property through the District Magistrate's Court, High Court and Court of Appeal, disbelieved the Appellant's professed ignorance, and held the fresh suit a gross abuse of process. The appeal was dismissed in its entirety with costs to the Respondent, and interim orders were vacated.

Key legal issues

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01

Mode of trial - disposal on witness statements and documents without calling witnesses

Holding

The trial court's directions under Order 11 Rule 2(c) were proper; the Appellant neither objected nor showed prejudice.

Reasoning

The pre-trial directions were given in the presence of the parties and their advocates, none objected, and the Appellant filed no notice of objection to any witness statement or document nor sought any cross-examination. His own statements and documents were admitted on the same basis. No prejudice could be discerned, so the ground failed.

p. 3
02

Whether the suit was dismissed solely on the basis of res judicata

Holding

No - the trial court gave several reasons, including failure to prove the claim on a balance of probabilities; the bar was not confined to res judicata and could include abuse of process.

Reasoning

A perusal of the trial judgment revealed no direct reference to res judicata. The trial court's holding that the plaintiff could only regain registration through appeal to a higher court was understood as a bar not necessarily confined to res judicata but also encompassing abuse of court process.

p. 3
03

Evaluation of evidence and abuse of court process

Holding

The suit was properly dismissed: the claim was not proved and was a gross abuse of process, the issues having been conclusively litigated before the District Magistrate's Court, the High Court and the Court of Appeal.

Reasoning

The court traced the dispute's history from 1977 and found the Appellant's claim of ignorance of prior proceedings disbelieved by every court that considered it, including this court. The inheritance question had been canvassed and determined; filing a fresh suit on the same issues after his father's conclusive loss was a gross abuse, and the appeal itself was frivolous and a continuation of that abuse.

p. 4

Legal principles established

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  • A first appellate court must analyze, reconsider and re-evaluate the entire evidence on record, making due allowance for the fact that it neither saw nor heard the witnesses.
  • Under Order 11 Rule 2(c) of the Civil Procedure Rules, a court may admit statements without calling their makers as witnesses where appropriate, particularly where no objection is raised and no notice to cross-examine is given.
  • Re-litigating issues conclusively determined by courts of competent jurisdiction is a gross abuse of the court process.

Court orders

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  1. 1.The appeal is dismissed in its entirety with costs to the Respondent.
  2. 2.The interim orders in place are vacated.

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 11 Rule 2(c)

Cases cited (3)

  • Selle & Another Vs Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters Vs Sunday Post Ltd
    [1958] EA 424
  • Watt Vs Thomas
    [1947] A.C 424
On appeal from
Chief Magistrates' Court at Embu
Embu CMCC No. 119 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrates' Court (Environment and Land Court Act)

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, "Mariko Ndwiga v Edith Muthanje [2020] KEELC 3714 (KLR)", Case Analysis (2020). E.L.C.A. Case No. 19 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3714/eng@2020-01-16

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