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ELCDismissedNot stated in the ruling (Bungoma High Court suit)· [2021] KEELC 4706 (KLR)

Mary Wanjiru Mwaniki & another v Peter Anjeyo Vohya & another; Paul Kamau Mwangi (Interested Party) [2021] KEELC 4706 (KLR)

High Court of Kenya
18 January 2021
BOBoaz N. Olao
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Bungoma refused to strike out a land trespass suit, ruling it was not a repeat of an earlier boundary dispute over different parcels.

What this practically means

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Executive summary

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This ruling of the High Court at Bungoma (Boaz N. Olao, J) determined the first limb of the 2nd defendant's Notice of Motion dated 16th January 2018, in which he sought a declaration that the plaintiffs' suit was res judicata Bungoma High Court Civil Appeal No 43 of 2006 and should be struck out, with costs. The second limb, on jurisdiction under Section 18 of the Land Registration Act, had already been dealt with in a ruling of 22nd November 2018. The 2nd defendant argued that the present suit concerned the same boundary dispute between parcels East Bukusu/South Kanduyi/1596 and 8830 previously litigated, and involved the same parties or those claiming under them. The plaintiffs opposed, contending that the parcels in issue in the former suit no longer existed and that this suit concerned new sub-divided parcels (13955, 13956, 13960 and 13961) created in 2009 out of parcel 1596, and that a consent order of 24th May 2017 was being frustrated. The court set out the four conditions for res judicata under Section 7 of the Civil Procedure Act, applying the Court of Appeal's exposition in James Njuguna Chui v John Njogu Kimani. It found the 1st defendant was not a party to the former appeal, and the parcels now sued over did not exist when that appeal was canvassed, so neither the issues nor the subject matter were directly and substantially in issue previously. The application was dismissed with costs in the cause as previously directed.

Key legal issues

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Whether the suit is res judicata Bungoma High Court Civil Appeal No 43 of 2006

Holding

The suit is not res judicata; the application is dismissed

Reasoning

Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties. The former appeal concerned the boundary between parcels 8830 and 1596, decided by the District Land Registrar and adopted by the magistrate's court. The current suit claims trespass on parcels 13955, 13956, 13960 and 13961, created in 2009 as sub-divisions of parcel 1596. The 1st defendant was also not a party to the former appeal. Both the issues and subject matter differ, so the res judicata plea fails.

p. 2

Legal principles established

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  • For a successful plea of res judicata the issue must be directly and substantially in issue in the former suit, the parties must be the same or claiming under the same title, the former suit must have been heard and finally decided, and the former court must have been competent
  • A suit concerning parcels of land that did not exist at the time of the former litigation cannot be res judicata as to that former suit

Court orders

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  1. 1.The first limb of the 2nd defendant's Notice of Motion dated 16th January 2018 seeking a finding that the suit is res judicata is dismissed
  2. 2.Costs shall be in the cause as directed on 22nd November 2018
Jurisdiction invoked
Original civil jurisdiction of the High Court; application premised on 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, "Mary Wanjiru Mwaniki & another v Peter Anjeyo Vohya & another; Paul Kamau Mwangi (Interested Party) [2021] KEELC 4706 (KLR)", Case Analysis (2021). Not stated in the ruling (Bungoma High Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4706/eng@2021-01-18

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