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ELCOtherELC NO. E020 OF 2021 (O.S)· [2022] KEELC 1014 (KLR)

Catherine Mwashi v Kiplagat Birech & 2 others [2022] KEELC 1014 (KLR)

Environment and Land Court of Kenya
3 March 2022
EOE. OBAGA
374 words in judgment
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The bottom line

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A Kenyan court dismissed a res judicata objection because the lawyer never attached the earlier judgment he claimed the case had already decided.

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 Eldoret on a preliminary objection dated 2nd August 2021 raised by the 1st Respondent, Kiplagat Birech, in an originating suit brought by Catherine Mwashi against the 1st Respondent, the Uasin Gishu Land Registrar and the Attorney General. The 1st Respondent contended that the suit, which concerns Ngelel Tarit farm LR 10927 measuring 14.56 acres, was res judicata because the same subject matter had been litigated and determined in Eldoret HCCC No. 16 of 1998 (Salome Mwashi & another v Javan Mwashi & another), with judgment delivered on 21st February 2003. Parties filed written submissions. The court noted that although counsel for the 1st Respondent referred to a judgment annexed to his submissions, no judgment was in fact annexed, either to the submissions or to the notice of preliminary objection. In the absence of the prior judgment, the court found the plea of res judicata to have no basis and could not verify that the matters now raised had been determined. The court dismissed the preliminary objection with costs, and took the opportunity to remind advocates of their duty to cross-check filings and to assist the court in the administration of justice, declining to require parties to retrieve files from the Archives for matters determined over two decades ago. The ruling was delivered virtually at Eldoret on 3rd March 2022 by E. Obaga J.

Key legal issues

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01

Whether the preliminary objection on res judicata could succeed without annexing the prior judgment

Holding

The objection was dismissed because the 1st Respondent failed to annex the judgment in Eldoret HCCC No. 16 of 1998, leaving the plea without basis.

Reasoning

The 1st Respondent contended the suit was res judicata, relying on a judgment delivered on 21st February 2003 in Eldoret HCCC No. 16 of 1998. Although counsel referred to the judgment as annexed to submissions, no such judgment was in fact annexed to the submissions or to the notice of preliminary objection. Without the judgment, the court could not verify that the same subject matter and issues had been determined, and the objection was dismissed with costs.

p. 1

Legal principles established

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  • A party asserting res judicata must place before the court the judgment said to give rise to the plea; absent that judgment, the objection fails.

Court orders

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  1. 1.The preliminary objection dated 2nd August, 2021 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Applicant

Authorities

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Cases cited (1)

  • Salome Mwashi & another –Vs- Javan Mwashi & another
    Eldoret HCCC No. 16 of 1998
Jurisdiction invoked
Environment and Land Court jurisdiction (original suit on land matter); no specific provision cited

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, "Catherine Mwashi v Kiplagat Birech & 2 others [2022] KEELC 1014 (KLR)", Case Analysis (2022). ELC NO. E020 OF 2021 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1014/eng@2022-03-03

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