Cleophas Wafula v Asmin Nasambu & another [2021] KEELC 3091 (KLR)
The bottom line
#A landowner lost his case entirely because he should have raised his claims in an earlier lawsuit between the same parties over the same land.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata
The suit is res judicata and an abuse of the court process.
The parties in this suit were the same parties in Bungoma SPMC Civil Case No 1109 of 1993 (with roles reversed), and the same parcels (891 and 1789) were in dispute there, as shown by the judgment of the late I. Indech (SPM) delivered on 24th April 1998. The remedies now sought could, with due diligence, have been raised by counter-claim in that suit. Explanation No 4 to Section 7 deems such matters to have been directly and substantially in issue. The subordinate court was competent, and no appeal was filed.
Whether a difference in the relief sought (declaration and injunction vs sub-division/nullification of mutation) defeats res judicata
No; under Henderson v Henderson and Explanation No 4 to Section 7, matters which might and ought to have been raised are barred.
Counsel for the plaintiff argued that the former suit concerned sub-division while this suit seeks a declaration and injunction over a different parcel. The court held that the plea extends beyond points actually decided to every point belonging to the subject of litigation which diligent parties could have raised. The plaintiff specifically pleaded in the former suit that the then-plaintiff had no claim over parcel 1789, so injunctive relief over it could have been sought there.
Legal principles established
#- For res judicata to apply: the issue must be directly and substantially in issue in both suits; the parties must be the same or claiming under them; the former suit must have been heard and finally decided; and the former court must have been competent.
- Res judicata extends to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time (Henderson v Henderson).
- The burden lies on the party pleading res judicata to place sufficient material before the Court.
Court orders
#- 1.The suit is struck out with costs to the defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; plea of res judicata under Section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cleophas Wafula v Asmin Nasambu & another [2021] KEELC 3091 (KLR)", Case Analysis (2021). Bungoma ELC (Suit re: East Bukusu/West Sang'alo/891 and 1789). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3091/eng@2021-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.