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ELCStruck OutBungoma ELC (not stated in judgment; plaint dated 27th October 2020, filed 2nd November 2020)· [2021] KEELC 4582 (KLR)

Fredrick Wekesa Machasio & another v Wilson Webi & 7 others [2021] KEELC 4582 (KLR)

Environment and Land Court
28 January 2021
BOBoaz N. Olao
2,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court struck out siblings' fresh land suit because the same family land dispute was already decided by the Court of Appeal.

What this practically means

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Executive summary

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The plaintiffs, children of Gabriel Mumela Machasio, sued their siblings and others seeking, inter alia, registration of title NDIVISI/MUCHI/2111 in their names pursuant to a 1974 clan distribution scheme, and simultaneously moved the court by Notice of Motion for a temporary injunction and preservation of status quo over the suit land. The defendants opposed, contending the suit was res judicata, that the land belonged to their father, the registered proprietor, and that no cause of action lay against them. The court identified res judicata as the threshold issue under Section 7 of the Civil Procedure Act, noting the same land and the same 1974 meeting had been determined by the Court of Appeal in Civil Appeal No 41 of 2017 (Kisumu), which directed registration in the father's name. Although the plaintiffs were not parties to that appeal, they claim under the same title; re-litigating would amount to this Court sitting on appeal over a superior court's decision. The suit was accordingly res judicata. In the alternative, applying Giella v Cassman Brown, Mrao and Nguruman, the court held no prima facie case was established: the land belongs to a non-party, and no orders could issue over it without his participation, that being an affront to Article 40 of the Constitution. The court lamented siblings litigating over their living father's property and urged alternative dispute resolution. The suit and the Notice of Motion were struck out with no orders as to costs, the parties being family, and the court implored them to pursue an out-of-Court settlement.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata as the ownership of the suit land was determined by the Court of Appeal in Civil Appeal No 41 of 2017, and the plaintiffs, claiming under the same title, cannot re-agitate the same issue

Reasoning

The suit land was the subject of the Court of Appeal judgment of 7th December 2018 which directed registration in Gabriel Mumela Machasio's name. The same 1974 clan meeting issue is now raised by the plaintiffs, who claim under the parties to that appeal. Re-litigating would amount to this Court sitting on appeal over a superior court's decision, which is impermissible.

p. 3
02

Whether the plaintiffs established a prima facie case for a temporary injunction

Holding

No prima facie case was established; the suit land belongs to a non-party, Gabriel Mumela Machasio, and no meaningful trial can be held without him

Reasoning

Applying Giella v Cassman Brown and Mrao v First American Bank, the court found no right apparently infringed by the defendants, who are not registered proprietors. Any remedy requires the involvement of the registered owner, who was not impleaded. Failing the first Giella test, the remaining limbs need not be considered per Nguruman.

p. 4

Legal principles established

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  • Res judicata bars a subsequent suit between the same parties or their privies over the same subject matter already determined by a competent court
  • A lower court cannot re-consider a dispute already determined by a superior court
  • Where no prima facie case is established, irreparable injury and balance of convenience need not be considered
  • Orders over property cannot issue without the participation of the registered owner

Court orders

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  1. 1.The suit is struck out together with the Notice of Motion dated 27th November 2020 upon which it is founded
  2. 2.No orders as to costs; parties urged to pursue an out-of-Court settlement

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(c)
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 7
  • Civil Procedure RulesSections 3 and 3A; Order 40 Rule 1

Cases cited (7)

  • GIELLA .V. CASSMAN BROWN & COMPANY LTD
    1973 E.A 358
  • LOTTA .V. TANAKA & OTHERS
    20903 2 E.A 556 (CAT)
  • JOHN NJUE NYAGA .V. THE ATTORNEY GENERAL & OTHERS
    C.A CIVIL APPEAL No 46 of 2015 NYERI (2016 eKLR)
  • MRAO .V. FIRST AMERICAN BANK OF KENYA LTD & OTHERS
    C.A CIVIL APPEAL No 39 of 2002 [2003 eKLR]
  • NGURUMAN LTD .V. JAN BONDE NIELSEN & OTHERS
    C.A CIVIL APPEAL No 77 of 2012
  • GABRIEL MUMELA MACHASIO .V. GEORGE WANYAMA MACHASIO
    Civil Appeal No 41 of 2017 KISUMU
  • BUNGOMA ENVIRONMENT AND LAND COURT JUDICIAL REVIEW CASE No 1 of 2020 [2020 eKLR]
    [2020 eKLR]
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (not expressly stated); res judicata under Section 7 of the Civil Procedure Act

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, "Fredrick Wekesa Machasio & another v Wilson Webi & 7 others [2021] KEELC 4582 (KLR)", Case Analysis (2021). Bungoma ELC (not stated in judgment; plaint dated 27th October 2020, filed 2nd November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4582/eng@2021-01-28

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