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ELCDismissed· [2022] KEELC 913 (KLR)

Michael Mbithi Mukolya & 4 others v Bonface Mulwa & 3 others [2022] KEELC 913 (KLR)

Environment and Land Court
10 March 2022
2,708 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed landowners' bid to overturn earlier orders and throw out a suit, ruling every element of res judicata must be proven.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on a Notice of Motion dated 6th May, 2021 by the 1st and 2nd Defendants seeking to stay and set aside a permanent order of 30th July, 2019 restraining the Chief Land Registrar from implementing an order of 4th November, 1997 in Machakos PMCC Misc. Application No. 48 of 1997, and to strike out the Plaint as res judicata and time barred. The dispute over land parcels Muthetheni/Kyethivo/207 and 209 dates back to 1970, involving litigation in the Tawa DMCC, the High Court and the Court of Appeal, culminating in the Court of Appeal's decision of 7th November, 1979 that the Mulili family were mere invitees without claim to the land. The court found the 30th July, 2019 order was issued inter partes and confirmed on 16th October, 2019 when the Defendants, though represented, filed no replying affidavit, and no plausible reason was given for setting it aside. On res judicata, the court held that the Applicants failed to discharge their burden under section 107 of the Evidence Act, since the issues in the Plaint differ from those in the miscellaneous cause, and res judicata had not been pleaded in a defence. The application was dismissed in its entirety, with costs in the cause, and the suit directed to proceed to full hearing on its merits.

Key legal issues

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01

Whether the orders of 30th July, 2019 should be set aside

Holding

The court declined to set aside the orders, finding they were issued inter partes and confirmed when the application of 20th March, 2019 went unopposed.

Reasoning

The record showed the order of 30th July, 2019 issued in the presence of both parties' counsel, hence not ex parte. Having not filed a replying affidavit within the 14 days directed, the 1st and 2nd Defendants' application was allowed as unopposed on 16th October, 2019. Represented by counsel, they should have explained the failure to respond; no plausible or candid reason was given, so setting aside was refused.

p. 3
02

Whether the Plaint is res judicata

Holding

The suit is not res judicata; the Applicants failed to discharge their burden of proof, and res judicata was not pleaded in a defence.

Reasoning

Section 7 of the Civil Procedure Act requires the matter to have been directly and substantially in issue and finally determined between the same parties in a competent court, conjunctively. The former miscellaneous cause adopted a Land Disputes Tribunal award, while the instant Plaint raises different issues, including the invalidity of that very adoption. The Applicants failed under section 107 of the Evidence Act to show the issues were heard and finally determined previously. The suit should proceed to full hearing on its merits.

p. 4

Legal principles established

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  • For res judicata to be upheld, the elements in section 7 of the Civil Procedure Act must be satisfied conjunctively, and the party pleading it bears the burden of proving them
  • The defence of res judicata must be pleaded in the defence to be relied upon
  • A party who fails to oppose an application and allows an order to issue unopposed cannot later seek to set it aside without furnishing a plausible explanation

Court orders

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  1. 1.The Notice of Motion application dated 6th May, 2021 is disallowed as unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 7
  • Evidence Actsection 107

Cases cited (11)

  • Omondi Versus National Bank of Kenya Ltd & Others
    (2001) EA 177
  • Henry Wanyama Khaemba Vs Chartered Bank Ltd
    Civil Case 560 of 2006
  • Trade Bank Ltd V L. Z. Engineering Construction Ltd
    (2000) IRA 266
  • Zurich Insurance Co. PLC Vs Colin Richard
    (2011) EWCA Civil 641
  • Mary Kerubo Ogoti V Chief Magistrate Court, Kisii Law Courts & 5 Others
    (2017) eKLR
  • Challenger Trade Finance Segregated Portfolio of South Africa SPC Vs Danish Brewing Company E. A Limited & 2 others
    (2020) eKLR
  • In re estate of David Wang'ang'a Gichuhi (Deceased)
    (2020) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Joseph Kaguthi & 11 Others V Permanent Secretary, Ministry of Interior & Coordination of Government & Another
    (2021) eKLR
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
Jurisdiction invoked
Sections 1A, 1B and 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, "Michael Mbithi Mukolya & 4 others v Bonface Mulwa & 3 others [2022] KEELC 913 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/913/eng@2022-03-10

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