Paul Kibii Cheriro v Betthwel Kipkemboi Kemei & 2 others [2022] KEELC 1512 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land petition as res judicata, ruling that adding new parties cannot revive a claim already decided in a final judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata given the judgment in Eldoret ELC No. 169 of 2013 over the same parcels of land
The suit is res judicata and was struck out with costs to the Respondents
The parcels of land in both suits are identical (NANDI/KAIBOI/857, 858, 859 and 861). A judgment was rendered over the same subject matter and cause of action by a competent court. The Petitioner was the Defendant and the 2nd Respondent the Plaintiff in the Eldoret case. The prior judgment was final, no Notice of Appeal having been exhibited. The added parties did not alter the identity of the cause of action.
Whether the prior judgment was final given an alleged appeal
The judgment was final because the Notice of Appeal was never filed or exhibited
Counsel for the Petitioner submitted from the bar that an appeal had been preferred but produced no Notice of Appeal or Record of Appeal. Distinguishing David Bisem vs Jerotich Tabarno Sang, where a Notice of Appeal was exhibited, the Court held that an unexhibited appeal claim leaves the judgment final for res judicata purposes.
Whether the addition of new parties defeats res judicata
No; adding new litigants to the same cause of action does not sanitize the suit
The 1st Respondent is a Director of the 2nd Respondent, and the 3rd, 4th and 5th Respondents are Government Agencies added to the same land dispute. Following Diocese of Eldoret Trustees vs Attorney General, the Court held that adding litigants to circumvent res judicata worsens the position and invites premature termination of the suit.
Legal principles established
#- Elements of res judicata: a final judgment on merit by a court of competent jurisdiction, with identical parties, subject matter and cause of action in both actions
- Adding or subtracting litigants to a suit substantially related to a previous suit on the same subject matter does not evade res judicata
- An appeal merely stated from the bar, without a filed and exhibited Notice of Appeal, does not render a judgment non-final for purposes of res judicata
Court orders
#- 1.The petition is struck out as res judicata
- 2.Costs awarded to the Respondents
- Jurisdiction invoked
- Inherent powers of the Court under Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kibii Cheriro v Betthwel Kipkemboi Kemei & 2 others [2022] KEELC 1512 (KLR)", Case Analysis (2022). Petition (Kapsabet ELC) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1512/eng@2022-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.