Michael Mbithi Mukolya & 4 others v Bonface Mulwa & 3 others [2022] KEELC 913 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the orders of 30th July, 2019 should be set aside
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.
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.
Whether the Plaint is res judicata
The suit is not res judicata; the Applicants failed to discharge their burden of proof, and res judicata was not pleaded in a defence.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 6th May, 2021 is disallowed as unmerited
- 2.Costs will be in the cause
- Jurisdiction invoked
- Sections 1A, 1B and 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.