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ELCPartially AllowedVihiga ELCA No. E045 of 2023 (Memorandum of Appeal dated 20th March, 2023)· [2024] KEELC 6162 (KLR)

Abulwa v Abulwa & 5 others (Environment and Land Appeal E004 of 2023) [2024] KEELC 6162 (KLR)

Environment and Land Court
19 September 2024
EAE. Asati
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The appellant, 1st defendant in Vihiga PM EL Case No. E041 of 2023, appealed against the ruling of Hon. R. Ndombi (Principal Magistrate) delivered on 16th November 2023, which allowed the 1st respondent's Notice of Motion dated 4th August 2023 seeking a mandatory injunction permitting the 1st plaintiff to access and reside in the family house on parcel E/Bunyore/IboOna/1281, and dismissed the appellant's preliminary objection that the application was res judicata in view of an earlier ruling of 24th July 2023 by Hon. S.O. Ongeri (SPM). As a first appeal, the court rehearsed the settled principle that it must reconsider the evidence and draw its own conclusions, citing Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR. Applying the five ingredients of res judicata under section 7 of the Civil Procedure Act, the court found that the earlier application of 26th June 2023 had sought the same relief of restoring the 1st plaintiff to the family house, in the same suit between the same parties, and had been heard and finally decided. The trial court's finding that the mandatory injunction was a new prayer to which res judicata could not apply was held to be erroneous; the proper remedy was review or appeal. The court also urged expeditious disposal of the main suit, preferably through AJS given the family relationship of the parties. The court allowed the appeal, set aside the ruling of 16th November 2023, substituted an order allowing the preliminary objection and striking out the application of 4th August 2023 with no order as to costs, and directed each party to bear its own costs of the appeal.

Key legal issues

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01

Whether the application dated 4th August, 2023 was res judicata in view of the ruling dated 24th July, 2023

Holding

Yes; all ingredients of res judicata were demonstrated and the trial court erred in allowing the application and dismissing the preliminary objection.

Reasoning

The earlier application of 26th June, 2023 sought restoration of the 1st Plaintiff to the family house, the same relief sought in the 4th August, 2023 application. The ruling of 24th July, 2023 was made in the same suit, between the same parties, over the same subject matter, and was final on the issue. The proper remedy was review or appeal, not a fresh application.

p. 4
02

Duty of a first appellate court

Holding

The court is entitled to re-examine and re-analyze the evidence and arrive at its own independent conclusion.

Reasoning

Relying on Gitobu Imanyara & 2 Others v Attorney General, an appeal from a trial is by way of retrial; the court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.

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Legal principles established

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  • A first appeal court must re-examine and re-analyze the evidence before the trial court and draw its own conclusions.
  • Where an application seeks relief already determined in a prior ruling in the same suit between the same parties, it is res judicata and the proper remedy is review or appeal.

Court orders

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  1. 1.The ruling dated 16th November 2023 in Vihiga Pmc El Case No E041 OF 2023 allowing the 1st Respondent's application dated 4th August 2023 and dismissing the appellant's preliminary objection dated 16/8/2023 is set aside
  2. 2.Substituted with an order allowing the preliminary objection and striking out the 1st Respondent's application dated 4th August 2023 with no order as to costs
  3. 3.Each party to bear own costs of the present appeal

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (1)

  • Gitobu Imanyara & 2 Others v Attorney General
    [2016] eKLR
On appeal from
Principal Magistrate's Court, Vihiga
Vihiga Pmc El Case No. E041 of 2023
Jurisdiction invoked
First appeal from the Principal Magistrate's Court

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, "Abulwa v Abulwa & 5 others (Environment and Land Appeal E004 of 2023) [2024] KEELC 6162 (KLR)", Case Analysis (2024). Vihiga ELCA No. E045 of 2023 (Memorandum of Appeal dated 20th March, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6162/eng@2024-09-19

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