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ELCDismissedNotice of Motion dated 22nd April 2021 (ELC Case, Kisii)· [2021] KEELC 959 (KLR)

John Samoita Guto v Samwel Ombui Ongaki [2021] KEELC 959 (KLR)

Environment and Land Court
10 November 2021
JOJ.M Onyango
1,842 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisii land court threw out a family's challenge to eviction notices because the same plot dispute had already been finally decided in 2007.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (J.M Onyango J) disposed of a Notice of Motion dated 22nd April 2021 by which the Applicant, as legal representative of the estate of Thomas Guto Nyamora, challenged an eviction notice dated 2nd February 2021 and all subsequent eviction notices concerning Keumbu Market Plot No. 18A. The Applicant relied on a 1985 sale agreement under which his late father allegedly purchased half of the plot from the late Francis Ratemo Ongaki and claimed quiet possession. The Respondent, administrator ad litem of the estate of Samson Ongaki, raised a preliminary objection that the application was founded on a void agreement under section 45 of the Law of Succession Act and was res judicata under section 7 of the Civil Procedure Act, given CMCC No. 227 of 2007 and CMELC No. 260 of 2018. The court framed two issues: whether the suit was res judicata and whether the eviction notice was valid. It traced the litigation history, noting that in CMCC No. 227 of 2007 the transfer of the property to Isaac Ayako Ongaki was held illegal and his title bad, and that the Applicant's own suit CMELC No. 260 of 2018 was dismissed as res judicata. Applying section 7 and the Uhuru Highway Development test, the court held the matter res judicata, the rights of the parties having been finally determined in 2007, and declined to entertain the challenge despite reservations about the eviction notice. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the application is res judicata

Holding

The application is res judicata as the parties have litigated endlessly over plot No. 18A since 2004 and a competent court finally determined the rights of the parties in CMCC No. 227 of 2007

Reasoning

Applying section 7 of the Civil Procedure Act and the test in Uhuru Highway Development v Central Bank, the court found that the same subject matter between the same parties or those claiming under them had been heard and finally decided. The earlier dismissal of CMCC No. 227 of 2007 was on the merits, since the court considered submissions before judgment, and the Applicant's own suit CMELC No. 260 of 2018 was itself dismissed as res judicata. Dissatisfied parties ought to have appealed.

p. 3
02

Whether the eviction notice dated 2nd February 2021 is valid

Holding

The court expressed reservations about the eviction notice in light of the CMCC No. 227 of 2007 judgment but declined to make a determination since the application was dismissed as res judicata and the judgment has not been impeached

Reasoning

The court noted that the CMCC No. 227 of 2007 judgment found the transfer of the property to Isaac Ayako Ongaki illegal and that he lacked good title, meaning the property was to revert to the estate of Samson Ongaki. Despite reservations about the notice, that unimpeached judgment still stands, so the court could not entertain the challenge.

p. 3

Legal principles established

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  • Parties cannot evade the doctrine of res judicata by adding other parties or causes of action or giving a case a cosmetic face-lift in subsequent suits
  • An unimpeached judgment of a competent court remains binding and stands notwithstanding a party's reservations about subsequent eviction notices

Court orders

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  1. 1.The Notice of Motion dated 22nd April 2021 is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Law of Succession Actsection 45
  • Civil Procedure Actsection 7
  • Civil Procedure Rulessection 7 (as referred to by the Respondent)

Cases cited (7)

  • Uhuru Highway Development vs Central Bank
    [1996] LLR CAK 2126
  • 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)
  • Isaac Ayako Ongaki v Thomas Guto Nyamora (Kisii CMCCC No. 227 of 2007, formerly Kisii HCCC No. 86 of 2004)
  • John Samoita Guto (Suing as the legal representative of the estate of Thomas Guto Nyamora) v Isaac Guto Ongaki (ELC No. 34 of 2017, transferred as CMELC No. 260 of 2018)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating 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, "John Samoita Guto v Samwel Ombui Ongaki [2021] KEELC 959 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd April 2021 (ELC Case, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/959/eng@2021-11-10

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