Wilson Mwirigi Manyara & M’Imanyara M’Murithi v Moffat Gichuru Manyara (Environment and Land Appeal 108 of 2019) [2020] KEELC 3870 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land suit as an abuse of process because it repeated a claim an earlier court had already decided between the same parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the Nkubu suit was res judicata to Meru ELC No. 54 of 2015
Yes; the claim raised the same issues as the previously dismissed suit and the trial magistrate erred in failing to determine the pleaded res judicata issue.
The Respondent had sued over the same land in Meru ELC No. 54 of 2015, claiming occupation since 1975, and that suit was dismissed with the court recognising the 1st defendant as absolute owner. The Nkubu claim was the same claim reworded to evade res judicata. Having lost, the Respondent's recourse was appeal, not fresh litigation; the suit was incompetent and an abuse of process.
Whether Court of Appeal Case No. 151 of 2007 was res judicata to the Nkubu suit
No; the parties and issues were different.
In CA No. 151/07 the 2nd Appellant was contesting the land with his brother Nkanata Murithi and his son Jamlick; neither the Respondent nor the 1st Appellant was a party, though the Respondent had been a witness. The parties and issues differ, so that appeal is not res judicata to the Nkubu case.
Whether the trial magistrate erred in ignoring the res judicata objection
Yes; the objection was raised in the defence and replying affidavit but was not determined at all.
Res judicata was pleaded in paragraph 8 of the defence and raised in the Replying Affidavit filed 26.3.19, and the rulings of prior courts were availed at the hearing. The trial magistrate summarised the appellants' case on the point but failed to determine it, which was erroneous given this court's duty on first appeal to re-evaluate the issue.
Whether the orders of inhibition were properly granted
The inhibition orders were justified as preservatory orders but fell with the finding of res judicata.
Inhibition orders issue where there is real danger the subject property will be disposed of before determination. The 2nd Appellant had begun subdividing and the magistrate's site visit confirmed the Respondent in occupation, so the orders preserved the substratum of the suit. However, since the suit itself was res judicata and was dismissed, the orders were set aside.
Legal principles established
#- A party cannot evade res judicata by tweaking or rebranding a claim already decided between the same parties by a court of competent jurisdiction
- A first appeal court must re-evaluate the evidence and make its own conclusions
Court orders
#- 1.This appeal is allowed
- 2.The orders issued on 8.8.2019 are hereby set aside
- 3.The Nkubu case PM ELC 15 of 2019 is hereby dismissed
- 4.The Appellants are hereby awarded Costs in this suit and in the lower court
- On appeal from
- Nkubu Principal Magistrate's Court (Environment and Land)
- PM ELC No. 15 of 2019
- Jurisdiction invoked
- First appeal from the subordinate court under the Civil Procedure Act (Sections 7 and 79) and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Mwirigi Manyara & M’Imanyara M’Murithi v Moffat Gichuru Manyara (Environment and Land Appeal 108 of 2019) [2020] KEELC 3870 (KLR)", Case Analysis (2020). ELC Appeal No. 108 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3870/eng@2020-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.