Clement Masanga Atonga v Lewkadia Milungi [2021] KEELC 2391 (KLR)

Section 7 CPA bars re-litigation of issues directly and substantially in issue and finally determined between same parties. The court must scrutinise the pleadings, proceedings and decision in the former suit; none were availed. Under Section 109 of the Evidence Act the burden lay on the defendant, who failed to discharge it.

Pecuniary jurisdiction is determined from the pleadings, and land value from a valuation report. No valuation report was on record and the originating summons did not state the value of the suit land, so the objection on pecuniary grounds could not succeed.

Section 38 of the Limitation of Actions Act predates the 2010 Constitution and must be construed with alterations to conform to Sections 26(3)-(4) of the Environment and Land Court Act and Section 9(a) of the Magistrates' Courts Act, per the Sixth Schedule and Article 259. Devolution of services under Articles 6(3) and 48 supports magistrates' jurisdiction, subject to pecuniary limits.

The suit land is registered in the name of the deceased Joseph Milungi. Under Section 2 of the CPA and the Law of Succession Act (Section 54 and Fifth Schedule), a person may only represent a deceased's estate in a suit via ad litem letters of administration. Although citation proceedings were taken in Homa Bay Succession Cause No. 902 of 2015, no extracted order appointing the defendant was traced; hence the defect was not a curable misjoinder.