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ELCDismissedNot stated in judgment (memorandum of appeal dated 17/03/2021)· [2024] KEELC 4844 (KLR)

Mulima ((Suing on behalf of Benjamin Okwaro Ojode)) v Odiro (Environment and Land Appeal E008 of 2022) [2024] KEELC 4844 (KLR)

Environment and Land Court
20 June 2024
3,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land trespass appeal because the same dispute had already been decided, even though the buyer was not a party to that earlier case.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya against a magistrates' court judgment delivered on 24/02/2022, which had dismissed the appellant's trespass claim over land parcel North Ugenya/Ndenga 1225 on the ground of res judicata, the subject matter having been determined in Siaya Land Dispute Tribunal Case No. 26 of 2010, adopted as a court order, in which the suit property's title was cancelled and the land reverted to the mother parcel, North Ugenya/Ndenga 892. The appellant, who claimed under a power of attorney and had purchased the property from parties to the previous case, faulted the trial magistrate for finding res judicata and for delivering a judgment that did not comply with Order 21 Rule 4 of the Civil Procedure Rules. Koross J found that although the one-page judgment indeed fell short of Order 21 Rule 4, non-compliance was not fatal, and, mindful of the overriding objective and the appellant's request for final determination, reassessed the evidence under Section 78 of the Civil Procedure Act. On the merits, the court held that although the appellant was not a party to the previous proceedings, he claimed under Consalate Adhiambo Ayucha and PW2, who had litigated, so by Explanation 6 to Section 7 of the Civil Procedure Act his suit was barred by res judicata. New issues raised for the first time on appeal by both counsel were disregarded. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Compliance of the impugned judgment with Order 21 Rule 4

Holding

The judgment did not comply, being a one-pager without a concise statement of the case or points for determination, but non-compliance was not fatal as the appellate court could determine the case finally under Section 78.

Reasoning

Order 21 Rule 4 requires judgments to contain a concise statement of the case, points for determination, decision and reasons. The impugned one-page judgment nosedived into a jurisdictional point without summary or reasoning. However, following Gilgil Telecoms and Johnson M. Mburugu, non-compliance should not vitiate a duly delivered judgment; the rules are silent on consequences, and since the appellant urged final determination and evidence was sufficient, the court reassessed the record itself.

p. 4
02

Whether the suit was res judicata

Holding

Yes. Though the appellant was not a party to the previous tribunal case, he claimed under parties (Consalate Adhiambo Ayucha and PW2) who litigated, so by Explanation 6 to Section 7 he was deemed to claim under them.

Reasoning

The tribunal case cancelled the suit property's title, being a subdivision of North Ugenya/Ndenga 892, and reverted it to the mother parcel. The appellant's title derived from Consalate and/or PW2, who were parties or objector in the previous case. The trial magistrate's finding of res judicata was therefore correct, and it was unnecessary to consider whether trespass was proved.

p. 7
03

Role of a first appellate court

Holding

The court does not interfere unless the trial magistrate misdirected herself, exercised discretion wrongly, or occasioned injustice; findings on credibility are entitled to great weight.

Reasoning

Guided by Watt v Thomas as adopted in Chief Land Registrar v Nathan Tirop Koech, the appellate court reviews the record with caution, respecting the trial tribunal's advantage of seeing and hearing witnesses. Being a first appeal under Order 42 Rule 32, the court may reassess evidence but will not disturb a conclusion reasonably supportable on conflicting testimony.

p. 3

Legal principles established

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  • For res judicata to suffice, the matter must have been directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title, before a competent court, and finally decided.
  • Under Explanation 6 to Section 7, persons claiming under parties who litigated in a former suit are deemed to claim under them for purposes of res judicata.
  • Non-compliance with Order 21 Rule 4 (reasoned judgments) does not per se vitiate a judgment; an appellate court confident the evidence is sufficient may determine the case finally under Section 78 of the Civil Procedure Act.
  • Issues not pleaded, canvassed or determined before the trial court cannot be raised for the first time on appeal.

Court orders

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  1. 1.The appeal is dismissed in its entirety.
  2. 2.The judgment of the learned trial magistrate delivered on 24/02/2022 is upheld.
  3. 3.Costs of the appeal awarded to the respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 4
  • Civil Procedure RulesOrder 21 Rule 1 (former Order XX Rule 1)
  • Civil Procedure RulesOrder 42 Rule 32
  • Civil Procedure RulesExplanation 6 to Section 7
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 78

Cases cited (7)

  • Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited)
    [2019] eKLR
  • Watt v Thomas
    [1947] AC, 484
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Gilgil Telecoms Industries Limited v Duncan Nderitu & 57 Others
    (2016) eKLR
  • Johnson M. Mburugu -vs- Fidelity Shield Insurance Company Ltd
    [2006] eKLR
  • Nyagwoka Ogora alias Kennedy Kemoni Bwogora -vs- Francis Osoro Maiko
    Civil Appeal No. 271 of 2000 (unreported)
  • John Florence Maritime Services Limited & another vs. Cabinet Secretary, Transport and Infrastructure & 3 others
    [2021] eKLR
On appeal from
Siaya Principal Magistrate's Court
Suit over land parcel North Ugenya/Ndenga 1225 (judgment delivered 24/02/2022 by learned trial magistrate)
Jurisdiction invoked
First appellate jurisdiction under Order 42 Rule 32 of the Civil Procedure Rules and Section 78 of the Civil Procedure Act

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, "Mulima ((Suing on behalf of Benjamin Okwaro Ojode)) v Odiro (Environment and Land Appeal E008 of 2022) [2024] KEELC 4844 (KLR)", Case Analysis (2024). Not stated in judgment (memorandum of appeal dated 17/03/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4844/eng@2024-06-20

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