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ELCStruck OutELC Case (Busia), application dated 25th February 2020 under Order 2 Rule 15(e) & (d) of the Civil Procedure Rules· [2021] KEELC 3574 (KLR)

Phyllis Makokha Sundia (Suing as the Legal Representative of Lucas Sundia Muga) v Francis Tobias Okello [2021] KEELC 3574 (KLR)

Environment and Land Court
28 April 2021
AOA. Omollo
1,173 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Busia struck out a land lawsuit because the same family had already litigated the identical ownership dispute and lost.

What this practically means

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Executive summary

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The defendant/applicant moved the Environment and Land Court at Busia by a notice of motion dated 25 February 2020 under Order 2 Rule 15(e) & (d) of the Civil Procedure Rules seeking to strike out the plaintiff's suit concerning land parcel SAMIA/LUANDA-MUDOMA/1369 on the ground of res judicata. He deposed that the dispute had already been litigated through the Funyula Land Disputes Tribunal, the Provincial Land Disputes Tribunal, Judicial Review No. 24 of 2009, ELC No. 20 of 2013 (withdrawn) and Busia ELC No. 44 of 2015, in which he obtained judgment on 20 February 2019 evicting the plaintiff's family; an appeal was pending in the Court of Appeal. The plaintiff opposed through a replying affidavit, contending that her son Gabriel Onyanchi did not represent her family, that she was not party to ELC No. 44 of 2015 or Kisumu CA No. 96 of 2014, and that she sued on behalf of the unsucceeded estate of her late husband, Lucas Sundia Muga. The court, applying Section 7 of the Civil Procedure Act and the five-part test in Bernard Mugo Ndegwa v James Nderitu Githae, held that the plaintiff and her son, as administrator, litigated under the same title - the estate of Lucas Sundia Muga - and that the ownership claim had been determined on merits by a competent court. The application was allowed, the suit struck out, with costs of the suit and application to the defendant.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata because the ownership of the suit land was determined on merits in Busia ELC No. 44 of 2015 between parties litigating under the same title

Reasoning

The court applied the five-part test from Bernard Mugo Ndegwa v James Nderitu Githae: identical issues, same parties, sameness of title, concurrence of jurisdiction and finality. The plaintiff's son, as administrator of the estate of Lucas Sundia Muga, litigated the same land ownership claim in ELC No. 44 of 2015, which was decided on merits; the plaintiff sues on behalf of the same estate, so the parties and subject matter are the same. Any new issues should have been raised in the former suit.

p. 2
02

Whether the plaintiff is a different party from her son who litigated the prior suits

Holding

The plaintiff and her son litigate under the same title, both representing the estate of Lucas Sundia Muga

Reasoning

Letters of administration issued on 12 October 2010 in Busia Succession Cause 119 of 2010 confirm Gabriel Onyanchi as legal representative of the estate. The plaintiff pleaded in her plaint and replying affidavit that she brought the suit on behalf of the same estate. No affidavit from Gabriel supported her claim that he did not represent the family in the prior proceedings.

p. 2

Legal principles established

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  • Res judicata applies where a matter directly and substantially in issue was heard and finally decided by a competent court between the same parties or parties litigating under the same title
  • A plaintiff suing on behalf of a deceased's estate is treated as litigating under the same title as the estate's administrator in prior proceedings

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs of the suit and the application awarded to the Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(e) & (d)
  • Civil Procedure Act, Cap 21Section 7

Cases cited (1)

  • Bernard Mugo Ndegwa Vs James Nderitu Githae and 2 Others
    (2010) eKLR
Jurisdiction invoked
Order 2 Rule 15(e) & (d) of the Civil Procedure Rules; Section 7 of the Civil Procedure Act, Cap 21

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, "Phyllis Makokha Sundia (Suing as the Legal Representative of Lucas Sundia Muga) v Francis Tobias Okello [2021] KEELC 3574 (KLR)", Case Analysis (2021). ELC Case (Busia), application dated 25th February 2020 under Order 2 Rule 15(e) & (d) of the Civil Procedure Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3574/eng@2021-04-28

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