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ELCPartially AllowedELC Suit (transferred from Eldoret ELC)· [2022] KEELC 2178 (KLR)

David Bisem v Jerotich Tabarno Sang & another [2022] KEELC 2178 (KLR)

Environment and Land Court
18 January 2022
MMM. N. Mwanyale
957 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a decision under appeal is not final, so res judicata cannot stop a related case; the suit was stayed pending the appeal.

What this practically means

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Executive summary

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The court ruled on the Plaintiff's Notice of Motion dated 15 October 2021 seeking stay of proceedings pending Eldoret Court of Appeal Civil Appeal No. 46 of 2019, alongside the 2nd Defendant's Preliminary Objection of even date contending that the suit was res judicata by virtue of the decision in Eldoret P&A No. 120 of 2010 (Re: Estate of Josiah Kibisem Sang), where the same parties litigated the same issues, including allegedly fraudulent transfers of title. The suit had previously been stayed by orders of 25 July 2013 pending the succession cause, whose ruling was delivered on 10 January 2019; the suit was then transferred to this court from Eldoret ELC. The suit against the 1st Defendant had abated on her death without substitution. The 2nd Defendant relied on section 7 of the Civil Procedure Act and two Court of Appeal decisions (Uhuru Highway Development Ltd v Central Bank of Kenya; KCB v Benjoh Amalgamated Ltd), while the Plaintiff relied on the Supreme Court's decision in John Florence Maritime Services Ltd, setting out the four elements of res judicata, including that the former judgment must be final. The court held that although there was a former judgment on merit between the same parties over the same subject matter, the pendency of the Plaintiff's appeal meant the succession cause decision was not final; res judicata therefore could not be sustained. The motion was allowed, the suit stayed pending the appeal, and the preliminary objection dismissed. No costs order was made.

Key legal issues

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Whether a pending appeal against the former judgment defeats a plea of res judicata

Holding

Yes - res judicata requires a former judgment which is final; a decision on appeal is not final

Reasoning

The court accepted the Supreme Court's four-element test in John Florence Maritime. While there was a former judgment on merit between the same parties over the same subject matter, the Plaintiff had appealed to the Court of Appeal (Eldoret CoA Civil Appeal No. 46 of 2019, earlier Civil Application No. 146 of 2019). Since the succession cause decision was not final, the res judicata element of finality was not met, so the preliminary objection failed and stay pending appeal was warranted.

p. 2

Legal principles established

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  • The four elements of res judicata must all be demonstrated before the doctrine is invoked
  • A decision under appeal is not a final decision for purposes of res judicata

Court orders

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  1. 1.Notice of Motion application dated 15.10.2021 allowed and suit stayed pending hearing and determination of Eldoret Court of Appeal Civil Appeal No. 46 of 2019
  2. 2.Preliminary Objection dated 15.10.2021 dismissed

Authorities

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Legislation

  • Civil Procedure Actsection 7

Cases cited (3)

  • Uhuru Highway Development Limited vs Central Bank of Kenya
    Civil Appeal No. 36 of 1996
  • Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited
    Civil Appeal No. 107 of 2010
  • John Florence Maritime Services Limited vs Cabinet Secretary Transport & Infrastructure and 3 Others
    (2021) EKLR
Jurisdiction invoked
Article 162(2)(b) Constitution / Environment and Land Court Act (first-instance suit transferred from Eldoret ELC)

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, "David Bisem v Jerotich Tabarno Sang & another [2022] KEELC 2178 (KLR)", Case Analysis (2022). ELC Suit (transferred from Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2178/eng@2022-01-18

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