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ELCDismissedEnvironment and Land Appeal 30 of 2021 (Formerly Migori ELC Appeal No. E028 of 2021)· [2022] KEELC 12701 (KLR)

Aketch (Suing as Legal Representative of the Late Jethro Akech Odongo) v Onyango (Sued as the Administrator of the Estate of Joash Onyango Ochieng)

Environment and Land Court
27 September 2022
1,361 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 dismissed a land appeal because the same family land dispute had already been decided in earlier court cases.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Homa Bay against the judgment of Hon. Tom Mark Olando, Principal Magistrate, which dismissed the appellant's Originating Summons dated 25th November 2019, filed under Order 37 Rule 8 of the Civil Procedure Rules claiming adverse possession, trust and a permanent injunction over LR No. East Kanyada/Kanyadier/783. The trial magistrate found the appellant had not proved his case on a balance of probabilities, reasoning that his occupation had not been peaceful since it had been repeatedly challenged in court. The appellant's nine-ground memorandum of appeal sought allowance of the appeal and substitution with an order allowing the originating summons. The appeal, transferred from Migori ELC to Homa Bay, was canvassed by written submissions. The court framed three issues: res judicata, whether the appellant established adverse possession and trust, and the just orders. Relying on Mwanasokoni v Kenya Bus Services on the first appellate duty, the court held that the dispute between the same parties over the same land had been previously adjudicated to finality - in Kanyadier Adjudication Objection No. 822, Land Appeal No. 75 of 2004 and Migori ELCC No. 559 of 2017 (itself dismissed as res judicata) - so section 7 of the Civil Procedure Act barred the claim. The trial judgment was therefore correct and undisturbed. The appeal was dismissed, with costs of the appeal and the original suit awarded to the respondent under the proviso to section 27(1) of the Civil Procedure Act.

Key legal issues

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01

Whether the appeal was barred by res judicata

Holding

Yes. The dispute had been previously adjudicated to finality in prior proceedings (Objection No. 822, Land Appeal No. 75 of 2004 and Migori ELCC No. 559 of 2017), so res judicata under section 7 of the Civil Procedure Act applied and the trial magistrate correctly dismissed the suit.

Reasoning

The court noted the appellant had earlier pursued objection proceedings, a Minister's appeal and Migori ELCC No. 559 of 2017 (dismissed as res judicata) over the same suit land. Since the same dispute between the same parties had been conclusively determined, section 7 of the Civil Procedure Act barred the claim, and the trial magistrate's judgment dismissing the originating summons was correct and would not be disturbed.

p. 3
02

Whether the appellant established claims in adverse possession and trust

Holding

The court did not reach the merits. Having held the matter res judicata, the burden of proof provisions (sections 107, 108 and 109 of the Evidence Act) meant the appellant had not made out a case warranting disturbance of the trial judgment.

Reasoning

The court framed the adverse possession and trust question as dependent on the res judicata finding. Because the matter was res judicata, the trial magistrate had reached a correct judgment, and sections 107, 108 and 109 of the Evidence Act placed the burden of proof on the appellant, who had not discharged it. No substantive analysis of occupation or trust was undertaken.

p. 3
03

The duty of a first appellate court

Holding

As a first appeal, the court is guided by Mwanasokoni v Kenya Bus Services Ltd on the duty to re-evaluate the evidence, but the res judicata finding disposed of the appeal.

Reasoning

The court acknowledged that this being a first appeal from the trial court, it was bound by the principles in Mwanasokoni v Kenya Bus Services Ltd requiring re-evaluation of evidence and facts. However, it found the threshold issue of res judicata dispositive, rendering detailed re-evaluation of the adverse possession and trust evidence unnecessary.

Legal principles established

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  • Where a dispute over land has been previously adjudicated upon to finality, section 7 of the Civil Procedure Act on res judicata comes into play and bars the subsequent claim.
  • Litigation must come to an end.

Court orders

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  1. 1.The appeal lodged by way of the memorandum of appeal dated 20th May 2021 be and is hereby dismissed
  2. 2.Costs of the appeal and the original suit in the court below shall be borne by the appellant, in the spirit of the proviso to section 27(1) of the Civil Procedure Act

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 6(3) and 48
  • Limitation of Actions ActSections 7, 13, 16, 17 and 38
  • Land Registration Act, 2016 (2012)Section 28(1)
  • Civil Procedure ActSection 7 and proviso to section 27(1)
  • Evidence ActSections 107, 108 and 109
  • Civil Procedure Rules, 2010Order 37 Rule 8

Cases cited (3)

  • Wambugu-vs-Njuguna
    (1983) KLR 173
  • Mtana Lewa-vs-Kahindi Ngala Mwangandi
    (2005) eKLR
  • Mwanasokoni-versus-Kenya Bus Services Limited
    (1982-88) 1 KLR 278

    The duty of a first appellate court to re-evaluate the evidence.

On appeal from
Homa Bay Chief Magistrate's Court
Environment and Land Case No. 63 of 2019
Jurisdiction invoked
First appeal from the magistrates' court; transfer under Articles 6(3) and 48 of the Constitution of Kenya, 2010

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, "Aketch (Suing as Legal Representative of the Late Jethro Akech Odongo) v Onyango (Sued as the Administrator of the Estate of Joash Onyango Ochieng)", Case Analysis (2022). Environment and Land Appeal 30 of 2021 (Formerly Migori ELC Appeal No. E028 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12701/eng@2022-09-27

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