Makitoni & 2 others v Mukhwana (Suing as the Administrator of the Estate of Teresina Musebe) & 3 others; Masinde (Suing as the Administrator of the Estate of Michael Watamba) (Interested Party) (Environment & Land Case 109 of 2000) [2023] KEELC 772 (KLR)
The bottom line
#A Kenyan land dispute court refused to shield 4 acres from trial, ruling that previous court cases involving different people don't settle the matter.
What this practically means
#Executive summary
#Key legal issues
#Whether parcel East Bukusu/North Nalondo/2550 is related to East Bukusu/North Nalondo/1658
Yes, the parcels are related; the argument to the contrary was frivolous, being contradicted by the title, vesting order, appeal proceedings and the court's order of 17/02/2014
The court examined the annexures LJM3 to LJM6 - the title to parcel 2550, the vesting order in Bungoma CMC Misc. Civ. Appl. No 51 of 1997, proceedings in Bungoma HCCA No 18 of 1999, and the order of 17/02/2014 restoring title 1658 and cancelling title 2550. It found these documents all relate to the very titles the plaintiffs claimed were unrelated, rendering that argument frivolous and vexatious.
Whether ownership of the 4 acres in parcel 2550 is res judicata
No; res judicata was not established because the parties in the prior proceedings and this suit are different and not litigating under the same title
Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue have been heard and finally decided between the same parties, or parties claiming under them, litigating under the same title. The plaintiffs in the present suit are totally different from the applicant and respondents in Bungoma CMC Misc. Civ. Application No 51 of 1997. Further, the applicant was attempting to circumvent the subsisting orders of 06/11/2019 without appealing or applying to set them aside. The res judicata issue was therefore unmeritorious.
Legal principles established
#- Res judicata requires that the parties in the former and subsequent suits be the same or litigating under the same title; it is immaterial that a party excludes or includes one or more parties in a subsequent suit
- A party cannot, by way of an interlocutory application, indirectly seek review of, or sit on appeal against, standing orders of the court which were not appealed against or set aside
Court orders
#- 1.Application dated 24/01/2022 dismissed with costs only to the Defendants
- 2.Parties (including the Interested Party) to prove their respective claims over the suit land in a full hearing
- 3.Interested Party to file pleadings, witnesses' statements and documentary evidence and serve within 14 days
- 4.Each party to comply with Order 11 of the Civil Procedure Rules within 30 days
- 5.Suit to be mentioned on 16/03/2023 to confirm filing of trial bundles
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makitoni & 2 others v Mukhwana (Suing as the Administrator of the Estate of Teresina Musebe) & 3 others; Masinde (Suing as the Administrator of the Estate of Michael Watamba) (Interested Party) (Environment & Land Case 109 of 2000) [2023] KEELC 772 (KLR)", Case Analysis (2023). Notice of Motion dated 24/01/2022 (in the principal suit, Bungoma/Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/772/eng@2023-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.