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ELCStruck OutELCC No. E042 of 2022 (Kakamega)· [2024] KEELC 4763 (KLR)

Hezron Wanyande's son (Plaintiff) v Estate of Elijah Andama Ashibambo & others - suit on Land Parcel Kisa/Muhaka/598

Environment and Land Court
19 June 2024
2,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a family land claim because the same parcel had already been decided by a court in 1980.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (D. O. Ohungo, J) disposed of three applications: the plaintiff's Notice of Motion dated 11th October 2022 seeking a temporary injunction restraining eviction, sale or alienation of Land Parcel Kisa/Muhaka/598 and its sub-divisions 918 to 922; the second defendant's Chamber Summons dated 13th December 2022 seeking dismissal of the suit as res judicata and an abuse of process; and the plaintiff's Notice of Motion dated 14th June 2023 seeking to enjoin the Attorney General and remove the deceased first defendant by amendment of the plaint. The court first addressed the res judicata objection. The second defendant, administrator of the estate of Elijah Andama Ashibambo, relied on the decree in Kakamega RMCC No. 293 of 1980 between Elijah Andama and Hezron Wanyande (the plaintiff's father), and on succession proceedings in Kakamega HC Succession Cause No. 321 of 1990 through which she acquired and subdivided the parcel. The plaintiff argued the earlier case was merely a boundary dispute. The court examined the decree and found it ordered rectification of the register to record Elijah Andama as owner of the parcel, making the current fraud-based claims to the same parcel res judicata. Holding that the proper remedy against that decree was setting aside or appeal, the court upheld the plea of res judicata, found it unnecessary to determine the other two applications, struck out the plaintiff's suit, and made no order as to costs given the close family relationship between the parties.

Key legal issues

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01

Whether the plaintiff's suit is res judicata having regard to Kakamega RMCC No. 293 of 1980

Holding

Yes; the suit was struck out as res judicata

Reasoning

The court found the subject parcel Kisa/Muhaka/598 was directly in issue in the earlier suit, the parties here litigate under the same title as the parties there (son of the earlier defendant suing the administrator of the earlier plaintiff's estate), and the earlier court, after formal proof, ordered the register rectified to reflect Elijah Andama as owner. The plaintiff's fraud claims could not reopen those findings; the proper remedy was setting aside or appeal.

p. 4
02

Whether the earlier suit was merely a boundary dispute as the plaintiff contended

Holding

No; it was a claim for rectification of the register conferring ownership of the whole parcel

Reasoning

The court perused the decree and found the earlier claim included rectification of the register to record Elijah Andama as owner of the portion forming part of Kisa/Muhaka/598, and the judgment ordered the register in respect of the parcel rectified to reflect him as owner thereof. That relief went beyond a mere boundary determination, so the plaintiff's characterization was rejected.

p. 4

Legal principles established

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  • Res judicata prerequisites: a previous suit, same parties or parties litigating under the same title, a competent court's final determination, and re-raising of the issue in the new suit; res judicata operates as a complete estoppel
  • Cosmetic changes such as altering parties to an old dispute do not defeat res judicata
  • A party aggrieved by a judgment should seek setting aside or appeal, not institute a new suit

Court orders

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  1. 1.Upheld the plea of res judicata
  2. 2.Struck out the plaintiff's suit
  3. 3.Made no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (8)

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Republic v The Attorney General & Another ex parte James Alfred Koroso
    [2013] eKLR
  • Ali K Ahmed t/a Sky Club Restaurant v Kabundu Holdings Ltd
    [2005] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another
    [2016] eKLR
  • E.T. v Attorney General & another
    [2012] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (disputes over title to land)

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, "Hezron Wanyande's son (Plaintiff) v Estate of Elijah Andama Ashibambo & others - suit on Land Parcel Kisa/Muhaka/598", Case Analysis (2024). ELCC No. E042 of 2022 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4763/eng@2024-06-19

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