Oyunge Barnabus Ratemo & 3 others v Charles Oteki Rioba & another [2022] KEELC 1401 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a res judicata defence because the defendants relied on contradictory documents, so the land dispute now proceeds to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act
The doctrine was not established; the applicants failed to prove that the same matter was directly and substantially in issue and finally determined between the same parties in the former Succession Cause
The court set out the conjunctive elements of res judicata: the issue was directly and substantially in issue in a former suit between the same parties or those claiming under them, litigating under the same title, heard and finally determined by a competent court. The applicants' documentation was internally contradictory - the order of 25/1/1995 was interim and preservatory, attached to an application dated 21/11/1995 which post-dated it. The court could not ascertain what issues were determined in either succession cause. The applicants failed to discharge the burden.
Whether the orders of 25/1/1995 in the Nairobi succession cause were final determinations on the merits
No; the orders were interim preservatory orders pending determination of the succession cause, and eviction was never determined
The Plaintiffs deponed that the Succession Court's mandate was limited to preservation of the estate and eviction was not determined; the earlier cause was withdrawn and Kisii High Court Succession Cause No. 5 of 2019 was filed and determined with restraining eviction orders. The orders of 25/1/1995 restrained entry, subdivision and interference with L.R 9346/2 pending hearing of a revocation application - not a final decision on the claims now before the court.
Whether the applicant's documentation was genuine and reliable
The court found the annexed order and chamber summons irreconcilable - the order appeared to have been granted before the application was filed - undermining the application entirely
The order dated 25/1/1995 was attached to a chamber summons dated 21/11/1995 with a supporting affidavit sworn 24/11/1995, scheduled for hearing 30/11/1995. Court rubber stamps were illegible. Chronologically the order predated the application it purported to issue from by about 10 months, and no title documents for 'L.R. NO. 9346/2' were annexed. The court concluded the application was designed to confuse it.
Legal principles established
#- Whether a case is res judicata requires comparison of the decision claimed to have settled the issues with the pleadings of both cases to ascertain the issues determined, identity of parties/title, and jurisdiction
- A party invoking res judicata must adduce authentic and coherent orders from the former suit; a party bear the burden of demonstrating the statutory threshold
Court orders
#- 1.The Defendants' Application dated 18/1/2022 is dismissed with costs
- 2.The case to proceed to full hearing
- Jurisdiction invoked
- Original civil jurisdiction over the suit; application under Section 7 of the Civil Procedure Act (Cap 21) for reference to arbitration and a finding of res judicata
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyunge Barnabus Ratemo & 3 others v Charles Oteki Rioba & another [2022] KEELC 1401 (KLR)", Case Analysis (2022). Not stated in the judgment (Application dated 18/1/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1401/eng@2022-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.