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ELCDismissedELC Miscellaneous No. 2 of 2021· [2022] KEELC 1325 (KLR)

Simon Kishanto Kudate v District Land Registrar; Tikoishi Ole Nampaso & another (Interested Parties) [2022] KEELC 1325 (KLR)

Environment and Land Court
24 February 2022
CMC. G. Mbogo
1,388 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 ruled that res judicata cannot block a case that was transferred, not decided.

What this practically means

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Executive summary

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The 1st and 2nd Interested Parties raised a preliminary objection dated 6th July, 2021 against the plaintiff's notice of motion dated 27th January, 2021, principally on the ground that the application was res judicata, having been directly and substantially in issue in ELC Appeal No. 10 of 2019, and further that no suit was properly filed and the miscellaneous file was commenced unprocedurally and was fatally defective. The objection was disposed of by written submissions. The Interested Parties relied on Sections 6 and 7 and Section 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules, citing Kenya Bankers Association v Kenya Revenue Authority, Peter Kwema Kahoro v Benson Maina Githethui and Rajab Kosgei Magut v Nuru Jepleting Choge. The applicant contended the application concerned inhibitions under Section 68 of the Land Registration Act and was not res judicata, relying on RW v JMN. The court isolated a single issue: whether the application was res judicata. Setting out the five conjunctive elements of Section 7, the court noted that in ELC Appeal No. 10 of 2019 Justice Kullow found on 12th March, 2020 that the matter was succession in nature and transferred it to the High Court for want of jurisdiction, and that the dispute is active before the High Court in Succession Appeal No. 1 of 2018 (Estate of Karasinka Ole Samurai) with a mention on 16th March, 2022. The issues were therefore never heard and finally determined, and interfering with the pending succession appeal would breach the sub-judice rule. The court declined to consider the other grounds and dismissed the preliminary objection with no orders as to costs.

Key legal issues

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01

Whether the application dated 27th January, 2021 is res judicata having regard to ELC Appeal No. 10 of 2019

Holding

The preliminary objection on res judicata fails because the issue in ELC Appeal No. 10 of 2019 was never heard and finally determined; that court transferred the matter for lack of jurisdiction, and the substantive dispute is active before the High Court in Succession Appeal No. 1 of 2018

Reasoning

Section 7 of the Civil Procedure Act requires five conjunctive elements, including final determination by a competent court. In ELC Appeal No. 10 of 2019 Justice Kullow found he lacked jurisdiction and transferred the matter to the High Court, where it remains active with a mention date. The elements of hearing and final determination and competence were therefore not satisfied, and interfering with the pending succession appeal would offend the sub-judice rule.

p. 2

Legal principles established

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  • For res judicata to be upheld, five essential elements must be proved in conjunctive terms, including that the issue was heard and finally determined by a court competent to try both suits
  • Res judicata does not apply where the former court declined jurisdiction and transferred the matter, so the issue was never heard and finally determined
  • Preliminary points must be capable of disposing of the matter without ascertaining facts from beyond the pleadings

Court orders

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  1. 1.The Notice of Preliminary Objection dated 6th July, 2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 19
  • Civil Procedure Rules, 2010Sections 1A and 1B (as cited in the grounds of objection)
  • Civil Procedure Rules, 2010Order 3 Rule 1
  • Land Registration ActSection 68
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Kenya Bankers Association versus Kenya Revenue Authority
    [2019] eKLR
  • Peter Kwema Kahoro versus Benson Maina Githethui
    [2005] eKLR
  • Rajab Kosgei Magut versus Nuru Jepleting Choge
    [2020] eKLR
  • RW versus JMN
    [2022] eKLR
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
Jurisdiction invoked
Environment and Land Court jurisdiction; Section 68 of the Land Registration Act invoked on inhibitions; Sections 6 and 7 of the Civil Procedure Act on res judicata

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simon Kishanto Kudate v District Land Registrar; Tikoishi Ole Nampaso & another (Interested Parties) [2022] KEELC 1325 (KLR)", Case Analysis (2022). ELC Miscellaneous No. 2 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1325/eng@2022-02-24

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