Teresa Chemoiywo v Lawi Kiplagat & 3 others [2021] KEELC 3755 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a 2006 land suit because the same dispute had already been decided in 1984, and you cannot relitigate a decided case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata by reason of Eldoret HCCC No. 34 of 1984
Yes - the subject matter and parties (including a party's administratrix) are the same, and the prior decree remains unchallenged and subsisting
The earlier High Court suit between the Plaintiff's late husband and the 1st Defendant concerned the same land, now registered as Plateau/Chepkong'ony Block 1 (Songich)/36 and 37. The decree of 9th November 1984 was never challenged on review or appeal. The Plaintiff, as administratrix of the earlier plaintiff's estate, is the same party in law, and joinder of the 2nd to 4th Defendants does not alter the identity of the suit.
Whether the Plaintiff should be punished for contempt
No order made - contempt was not prayed for and the order allegedly disobeyed was not annexed
Though the 1st Defendant's affidavit and submissions sought punishment for contempt, the Notice of Motion contained no specific prayer for that order. The alleged order was also not annexed, so contempt was not properly an issue for determination.
Entitlement to costs
The 1st Defendant, having succeeded, is entitled to costs under Section 27 of the Civil Procedure Act
The 1st Defendant succeeded in the striking-out prayer; costs follow the event under Section 27 of the Civil Procedure Act, and were awarded to the Defendants.
Legal principles established
#- A decree issued by a court of competent jurisdiction, not challenged through review or appeal, bars the same issues being raised before a court of concurrent jurisdiction under Section 7 of the Civil Procedure Act
- A party suing as administratrix of the estate of the earlier plaintiff is bound by the prior decision, and adding other defendants does not avoid res judicata
Court orders
#- 1.The Plaintiff's suit is struck out with costs to the Defendants for being res-judicata
- 2.The Ruling to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses
- Jurisdiction invoked
- Section 7 of the Civil Procedure Act, Chapter 21, Laws of Kenya; Section 28 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teresa Chemoiywo v Lawi Kiplagat & 3 others [2021] KEELC 3755 (KLR)", Case Analysis (2021). Eldoret HCCC No. 34 of 1984 referenced; present suit being the Plaintiff's suit commenced by plaint dated 24th February, 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3755/eng@2021-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.