Joshua Kipkemei Chumo & 2 others v Japheth Kibiwott Lelei [2022] KEELC 2044 (KLR)
The bottom line
#A Kenyan land court allowed a defendant's counterclaim to proceed, ruling it was neither time-barred nor barred by earlier dismissed cases.
What this practically means
#Executive summary
#Key legal issues
#Applicability of section 91 of the Civil Procedure Act to an interlocutory judgment
Section 91 does not apply to an interlocutory judgment set aside as of right under Order 43; it applies to decrees in appeals
The court read section 2 of the Civil Procedure Act, under which a decree excludes an adjudication from which an appeal lies as from an order. Order 43 grants an appeal as of right from Order 10 Rule 11 (setting aside of interlocutory judgment). Following Njeru Kirumbi v Justa Ngai Nyaga, the court held that section 91 governs restitution after reversal of a decree on appeal, not interlocutory judgments, so there was no bar to the counterclaim.
Limitation
The counterclaim was not time barred
The interlocutory orders under which the subdivision and transfer were effected were vacated on 15.4.2011. Upon setting aside, the Respondent was restored to his prior position and had a fresh cause of action to pursue the properties. The counterclaim filed on 18.7.2018 fell within the 12-year limitation period.
Res judicata
The counterclaim is not res judicata because the earlier application was dismissed for want of prosecution, not on merit
Applying the Supreme Court's test in John Florence Maritime Services, one element of res judicata is that the former judgment was on merit. The similar application in Eldoret CMCC No. 164 of 1998 was dismissed because the underlying suit had been dismissed for want of prosecution, so it was never determined on its merits. The doctrine therefore could not be invoked against the counterclaim.
Legal principles established
#- Section 91 of the Civil Procedure Act applies to decrees in appeals and does not apply to interlocutory judgments which can be set aside as of right under Order 43
- Setting aside interlocutory orders restores parties to their position before the orders were made, giving rise to a fresh cause of action
- Elements of res judicata as laid down by the Supreme Court in John Florence Maritime Services Limited
Court orders
#- 1.The application dated 22nd April 2021 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Original civil jurisdiction over land dispute (counterclaim to cancel titles NANDI/CHEPTIL/463 and 464); specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kipkemei Chumo & 2 others v Japheth Kibiwott Lelei [2022] KEELC 2044 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2044/eng@2022-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.