Isaboke & another v Okara & another (Land Case Appeal E009 of 2025) [2026] KEELC 3327 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the failure by the court to consider written submissions amounted to an error apparent on the face of the record justifying review
Yes - the trial court had wrongly stated that the Appellants neither filed a response nor submissions, whereas submissions raising the res judicata issue were on record; that was a clear error apparent on the face of the record
The record demonstrated that the Appellants had filed written submissions which raised, among other things, the argument that the application of 31st January 2023 was res judicata in view of the ruling of 13th April 2021. The Chief Magistrate's finding that no submissions were filed was factually wrong and constituted a mistake or error apparent on the face of the record under Section 80 of the Civil Procedure Act and Order 45 Rule 1, warranting review.
Whether the delay of two months and ten days in filing the application for review was inordinate
No - given that the ruling was rescheduled and delivered in the absence of the parties, the delay was not inordinate
The ruling was scheduled for 10th September 2024 but the court, without any appearance by the parties, rescheduled it to 24th September 2024, and no reason was given for the change of date. It was ultimately delivered in the absence of the parties. In these circumstances the delay of two months and ten days between the ruling and the filing of the review application was not unreasonable, and the learned Magistrate erred in holding that there was inordinate delay.
Whether the Notice of Motion dated 31st January 2023 was res judicata
Yes - the issue of locus standi had already been determined in the ruling of 13th April 2021, so the First Respondent's fresh application was res judicata
The earlier ruling of 13th April 2021 dealt with whether the Plaint could be struck out for want of locus standi based on the revocation of the letters of administration ad litem. The court had concluded that the Appellants had locus standi and dismissed the application. The First Respondent sought to relitigate the very same issue, which was barred by Section 7 of the Civil Procedure Act. The correctness of that ruling could only be challenged on appeal.
Legal principles established
#- An appellate court should not interfere with the exercise of discretion by an inferior court unless satisfied that the decision is clearly wrong due to misdirection, acted on wrong matters, or failed to consider relevant matters resulting in a wrong conclusion
- Res judicata deprives a court of jurisdiction and is a complete estoppel; its elements are a previous suit, same parties or litigating under the same title, determination by a competent court, and the issue raised again
- Findings in an earlier ruling can only be challenged on appeal, not relitigated; a subsequent application raising the same issue is res judicata
Court orders
#- 1.The ruling and order of the Subordinate Court dated 8th July 2025 is set aside
- 2.The ruling and order of the Subordinate Court dated 24th September 2024 is reviewed
- 3.Notice of Motion dated 31st January 2023 is struck out
- 4.The Appellants shall have costs of this appeal as well as costs of Notice of Motion dated 31st January 2023, and Notice of Motion dated 2nd December 2024
- On appeal from
- Chief Magistrates Court at Nyamira
- Jurisdiction invoked
- First appellate jurisdiction over appeals from subordinate courts (Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules considered)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaboke & another v Okara & another (Land Case Appeal E009 of 2025) [2026] KEELC 3327 (KLR)", Case Analysis (2026). Memorandum of Appeal dated 29th July 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3327/eng@2026-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.