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ELCDismissedEnvironment & Land Case E010 of 2023· [2024] KEELC 1387 (KLR)

Okombo v Ajwang (Environment & Land Case E010 of 2023) [2024] KEELC 1387 (KLR)

Environment and Land Court
12 March 2024
GOG.M.A. Ong'ondo
1,704 words in judgment
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The bottom line

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The Environment and Land Court in Homa Bay dismissed a long-running land claim because the same dispute had already been decided between the same parties.

What this practically means

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Executive summary

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The plaintiff filed an originating summons dated 23rd May 2023 under Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010, seeking determination that Rispa (Risper) Obonyo Ajwang, the defendant's mother, was erroneously registered on land parcel Kanyamwa/Kochieng/Omungu/Kakaeta/169; the plaintiff claimed occupation of over 35 years amounting to adverse possession and sought an injunction against eviction. The defendant, through a replying affidavit sworn on 3rd July 2023, raised a preliminary objection that the suit is res judicata, citing prior litigation: Kisii HCCC No. 125 of 1995 (dismissed 1st October 2001), a consent judgment in Kisii HCCC No. 100 of 2008, a dismissed review application in Kisii ELC Misc No. 313 of 2012, and Ndhiwa PMC ELC No. 21 of 2020, which was struck out as res judicata. The plaintiff argued the former suits were not determined on merits, citing Hezron Kamau Gichuru v Richardson Kipkoech Bundotich. The court, G.M.A. Ong'ondo J, framed two issues: whether the suit is res judicata and what orders meet the ends of justice. Applying section 7 of the Civil Procedure Act and the three essential elements of res judicata (earlier decision, final judgment on merits, same parties or privies), the court found all prior suits involved the same parties and the same land, and that the consent judgment stood absent fraud, coercion or undue influence. Holding that litigation must come to an end, the court upheld the preliminary objection and dismissed the originating summons with costs to the defendant on 12th March 2024.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata; the preliminary objection is upheld and the suit is dismissed

Reasoning

The court traced prior litigation over the same land between the same or closely related parties: Kisii HCCC No. 125 of 1995 (dismissed 1st October 2001), a consent judgment in Kisii HCCC No. 100 of 2008 (13th July 2010), a review application dismissed in Kisii ELC Misc No. 313 of 2012 (27th June 2014), and Ndhiwa PMC ELC No. 21 of 2020 struck out as res judicata on 1st June 2021. Applying section 7 of the Civil Procedure Act and the three essential elements (earlier decision, final judgment on merits, same parties or privies), the court found the elements satisfied and the suit an abuse of process.

p. 4
02

Whether the consent judgment in Kisii HCCC No. 100 of 2008 could be challenged

Holding

The consent judgment stands absent grounds such as coercion, fraud or undue influence

Reasoning

Following Brooke Bond Liebeg (T) Ltd v Mallya and Flora Wasike v Destimo Wamboko, a consent judgment can only be set aside on grounds that would justify setting aside a contract. The court found no revelation of coercion, fraud or undue influence regarding the terms of the consent judgment, as noted in National Bank of Kenya Ltd v Pipe Plastic Samkolit Ltd.

p. 4

Legal principles established

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  • Litigation must come to an end; a suit on the same subject matter and parties already determined is res judicata and an abuse of court process
  • A consent judgment can only be set aside on the same grounds as would justify setting aside a contract

Court orders

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  1. 1.The preliminary objection on res judicata captured in the defendant's replying affidavit at paragraphs 8, 9, 10, 14 and 15 is upheld
  2. 2.The originating summons dated 23rd May 2023 is dismissed with costs to the defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 37 Rules 7 and 14

Cases cited (6)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors
    (1969) EA 696
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    (2013) eKLR
  • Hezron Kamau Gichuru & 6 others v Richardson Kipkoech Bundotich & 5 others
    (2021) KLR
  • Brooke Bond Liebeg (T) Ltd v Mallya
    (1975) EA 266
  • Flora Wasike v Destimo Wamboko
    (1988) KLR 429
  • National Bank of Kenya Ltd v Pipe Plastic Samkolit Ltd and another
    (2002) EA 503
Jurisdiction invoked
Article 159(2) of the Constitution of Kenya; section 7 of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 37 Rules 7 and 14 of the Civil Procedure Rules, 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, "Okombo v Ajwang (Environment & Land Case E010 of 2023) [2024] KEELC 1387 (KLR)", Case Analysis (2024). Environment & Land Case E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1387/eng@2024-03-12

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