Hamisi & another v Bwafumo & another (Civil Appeal 61 of 2022) [2026] KECA 1327 (KLR) (10 July 2026) (Judgment)

Hamisi & another v Bwafumo & another (Civil Appeal 61 of 2022) [2026] KECA 1327 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1327 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal 61 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Masudi Tsumo Hamisi 1st Appellant Tima Kadiri Tsumo 2nd Appellant and Rama Hussein Bwafumo 1st Respondent Mohamed Issa 2nd Respondent (An appeal against the Ruling and Decree of the Environment and Land Court at Mombasa, (Naikuni, J.) delivered on 22nd February 2022 in Mombasa ELC Civil Suit Nos. 465 of 2011 Civil Suit 465 of 2011 ) Judgment 1.The dispute concerned ownership of two parcels of land known as Kwale/Msambweni ‘A’/2830 and Kwale/Msambweni ‘A’/1781 (the parcels). The 1st and 2nd Appellants, Masudi Tsumo Hamisi and Tima Kadiri Tsumo (respectively), instituted suits in the Environment and Land Court, being Mombasa HCCC No. 465 of 2011 /ELC NO.466 OF 2011 claiming proprietary rights over the parcels as heirs of the original registered owners. 2.The 1st and 2nd Respondents, Rama Hussein Bwafumo and Mohamed Issa respectively, opposed the claims and raised a Preliminary Objection dated 25th October 2021 on the ground that the suits were barred by the doctrine of res judicata. In support of the Preliminary Objection, the Respondents contended that the ownership of the same parcels had previously been litigated before the Msambweni Land Disputes Tribunal in Tribunal Case Nos. 30 of 2005 and 8 of 2005. They claimed that, in those proceedings, the Tribunal determined that the parcels belonged to the Bwafumo family. The Tribunal awards were subsequently adopted as Judgments dated 22nd March 2005 and 26th February 2009 of the Kwale Magistrate’s Court in Land Case No. 29 of 2005 and Land Case No. 8 of 2009 respectively. The Respondents argued that the earlier decisions were final, binding, and involved the same parties litigating under the same title, thereby rendering the fresh suits an abuse of the court process. 3.The Preliminary Objection was to be canvassed by way of written submissions, but the Appellants did not file written submissions in response. Upon considering the Preliminary Objection and the Respondents’ submissions, in its ruling, the trial court examined the scope of Section 7 of the Civil Procedure Act and the elements necessary to establish res judicata. The court found that the subject matter in the earlier proceedings and the current suits was identical, that the parties were the same or were claiming under the same title, and that the earlier disputes had been heard and conclusively determined by a competent forum whose decisions had been adopted as judgments rendered by the magistrate’s court. 4.The court further held that the Land Disputes Tribunal, though established under the repealed Land Disputes Tribunal Act, was a lawful forum at the time and that, once its awards were adopted by the Magistrate’s Court, they attained the status of final Judgments; that the Appellants’ failure to pursue appeals against those decisions did not entitle them to reopen the dispute through fresh litigation. It was emphasized that the public policy rationale underpinning res judicata was grounded on the need for finality in litigation and the efficient use of judicial resources. 5.In conclusion, the trial court held that the suits filed by the Appellants were res judicata and could not be salvaged by Article 159 of the Constitution, as the doctrine is substantive based, rather than a mere technicality. The consolidated suits were accordingly dismissed in their entirety with costs awarded to the Respondents. 6.Aggrieved, the Appellants filed an appeal to this Court on grounds that: the learned Judge was wrong to rely on documents which resemble court proceedings of the Senior Resident Magistrate’s Court for Land Case No. 29 of 2005 and 8 of 2009, but which documents are uncertified copies of the purported proceedings; in holding that there could be res judicata when a matter has been dealt with by a court that lacked jurisdiction; in finding that the ELC No. 466 of 2011 and ELC No. 465 of 2011 are res judicata to Senior Resident Magistrate’s Court for Land Case No. 29 of 2005 and 8 of 2009; in wrongly evaluating the evidence on record, and reaching a wrong determination; and in ordering the Appellants to pay the costs of the suit. 7.In response, the Respondents filed a Preliminary Objection on the grounds that: the 2nd Appellant is deceased and no letters of administration have been obtained to enable the estate of the deceased instruct the advocates of the Appellants to file an appeal; and that the appeal was an abuse of the court process as the death of the 2nd Appellant terminated an advocate’s authority to act on their behalf, and that it should be struck out in limine. 8.In support of the Preliminary Objection, the Respondents submitted that the appeal is incompetent, fatally defective, and an abuse of the court process, and urged the Court to uphold the Preliminary Objection and strike out the appeal in limine for the reasons stated. 9.It was submitted that, under Order 24 rule 3 of the Civil Procedure Rules, where one of several plaintiffs dies and no application for substitution is made within one year, the suit abates as against the deceased party. In the present case, the 2nd Appellant died on 26th June 2013, and no substitution was effected within the statutory period. As a result, the suit abated by operation of law, and no valid proceedings can be sustained thereafter in respect of the deceased Appellant. 10.It was further submitted that the death of a party automatically terminates an advocate’s authority to act. Consequently, the firm of advocates on record lacked legal instructions to file or prosecute the appeal in the absence of a duly appointed legal representative of the deceased’s estate. The principle stated in Macfoy vs United Africa Co. Ltd [1961] 3 All ER 1169 was relied on for the proposition that a void act is a nullity in law and cannot found any valid proceedings and that, in the absence of letters of administration, counsel did not have instructions to pursue the appeal on behalf of the deceased Appellant. The case of Kenya Farmers’ Cooperative Union Ltd vs Charles Murgor (Deceased) t/a Kiptabei Coffee Estate [2005] Eklr was also relied on for the proposition that, once a suit has abated by operation of law, the court has no jurisdiction to order substitution, or to hear and determine the suit. 11.It was submitted that this Court similarly lacks jurisdiction to entertain an appeal filed long after it has abated, and that the appeal, having been filed more than nine years after the death of the 2nd Appellant and without any substitution or grant of representation, is incurably defective, null and void, and incapable of being cured by any procedural or constitutional provisions. 12.The Respondents accordingly urge the Court to strike out the appeal with costs. 13.When the appeal came up for hearing on a virtual platform, learned counsel Mr. Magolo appeared for the Appellants, but there was no appearance by counsel for the Respondents though served with the hearing notice. Prior to tendering his submissions, counsel for the Appellants sought for, and obtained, the leave of the Court to strike out the 2nd Appellant as a party to the appeal for the reason that he had since passed on. 14.In their written submissions, counsel for the 1st Appellant submitted that the appeal is meritorious and ought to be allowed as the learned Judge was in error in upholding the plea of res judicata. It was contended that the court below relied on documents purported to be proceedings and Judgments of the Senior Resident Magistrate’s Court in Land Case Nos. 29 of 2005 and 8 of 2009, which were mere uncertified copies, and were therefore inadmissible. In the absence of certified proceedings or judgments, the Court could not properly conclude that the matters had been previously heard and finally determined on their merits. 15.Counsel further submitted that the learned Judge misdirected himself in holding that the doctrine of res judicata could arise from proceedings conducted by a forum that lacked jurisdiction; that the Land Disputes Tribunal, established under the repealed Land Disputes Tribunals Act, was expressly limited under Section 3(1) of that Act to disputes relating to boundaries, occupation or use of land, and trespass; that the Tribunal had no jurisdiction to determine ownership, title, or registration of land, nor to order cancellation of titles or changes in the land register; and that any such orders were therefore ultra vires, null and void. 16.In support of this proposition, counsel relied on the case of Republic vs Chairman, Land Disputes Tribunal, Kirinyaga District & Another ex parte Kariuki [2005] eKLR where the High Court held that a Land Disputes Tribunal acts in excess of jurisdiction when it purports to cancel or transfer title to land. Reliance was also placed on this Court’s decision in the case of Jotham Amunavi vs The Chairman, Sabatia Division Land Disputes Tribunal & Another [2002] eKLR, which authoritatively held that tribunals established under the Act had no jurisdiction to entertain disputes over ownership or title to registered land. Further reliance was placed on the case of Republic vs Provincial Land Appeals Committee, Rift Valley Province & 2 Others ex parte Monica Nyambura Njuguna & Another [2011] eKLR where it was affirmed that neither a Land Disputes Tribunal nor a Provincial Appeals Committee could lawfully nullify a registered title. 17.Counsel submitted that, since jurisdiction is everything, proceedings and decisions made without jurisdiction are nullities and cannot be validated by subsequent adoption by a Magistrate’s Court. Consequently, such decisions cannot constitute a “…former suit heard and finally decided by a court of competent jurisdiction…” for purposes of Section 7 of the Civil Procedure Act. On this basis alone, it was submitted that the doctrine of res judicata was misapplied since the previous decision was not based on the substantive merits of the dispute by a competent court. The case of MWK vs AMW [2016] eKLR was relied upon for the proposition that a suit is only barred by res judicata if it was heard and determined on its merits as opposed to being disposed of on a preliminary or technical grounds. Counsel cited the cases of Nancy Mwangi t/a Worthlin Marketers vs Airtel Networks (K) Ltd [2014] eKLR; Kamunye & Others vs Pioneer General Assurance Society Ltd [1971] EA 263; and John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR, for the settled principles governing the application of the doctrine of res judicata, including the requirement of jurisdiction and the final determination of a matter on its merits. 18.Counsel therefore submitted that the learned Judge wrongly evaluated the evidence by overlooking the jurisdictional defects affecting the tribunal proceedings, and by treating void decisions as conclusive determinations, which led to an erroneous finding that ELC Nos. 466 of 2011 and 465 of 2011 were res judicata the Kwale SRM Land Case Nos. 29 of 2005 and 8 of 2009. 19.Finally, counsel submitted that the learned Judge was in further error in condemning the Appellants to pay costs. 20.For their part, the Respondents did not appear despite being served and, save for the submissions filed in respect of their Preliminary objection, they did not file any written submissions against the Appellants’ appeal, 21.As a first appellate court, this Court is enjoined to reassess, re-evaluate and re-analyse the evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify. In so doing, the Court must give due allowance for that disadvantage and interfere with the findings of the trial court only where it is demonstrated that the court below acted on no evidence, misapprehended the evidence, applied the wrong principles of law, or arrived at a plainly wrong conclusion. 22.This Court in the case of Geoffrey Muthinja & another vs Samuel Muguna Henry & 1756 others [2015] KECA 304 (KLR) elaborated on its mandate thus:“As this is a first appeal, our mandate is a broad one and involves, by dint of Rule 29 (1) (now Rule 31 (1) of the Court of Appeal Rules, a fresh and exhaustive examination, re- evaluation and re-analysis of the entire record with a view to drawing our own inferences and making our own independent conclusion, on all the material before us. We pay a measure of deference to the findings of the first instance Court but are free to depart from them in appropriate cases, where they are founded on no evidence, constitute a misapprehension of the law or are plainly wrong.” 23.Upon consideration of the record of appeal, the grounds of appeal, the preliminary objection, and the rival submissions by counsel, the following issues arise for determination:i.Whether the appeal is competent in light of the death of the 2nd Appellant, the absence of substitution, and lack of a grant of representation;ii.If the answer to (1) is in the negative, whether this Court has jurisdiction to entertain the appeal;iii.Whether the learned Judge was wrong in upholding the plea of res judicata and, in particular, whether proceedings and awards of the Land Disputes Tribunal (as adopted by the Magistrate’s Court) constituted a final determination by a court of competent jurisdiction capable of grounding res judicata;iv.Whether the learned Judge was in error in relying on uncertified copies of proceedings and judgments in reaching the impugned decision; andv.Whether the order on costs made by the trial court ought to be interfered with. 24.On the first issue arising from the Respondents’ Preliminary Objection, of whether the appeal is competent following the death of the 2nd Appellant, and in the absence of substitution and lack of a grant of representation, in view of the Appellant’s counsel having sought and obtained leave of the Court to strike out the 2nd Appellant as a party to the appeal, we consider that it is overtaken by events and is no longer an issue for determination. 25.That said, where a cause of action is severable, the death of one party does not extinguish the rights of the surviving party. In such circumstances, though the 2nd Appellant is no longer a party to the appeal, it may still proceed at the instance of the surviving litigant. As a consequence, the appeal by the 1st Appellant remains active against the Respondents, and we so find. 26.On whether the learned Judge was wrong in upholding the plea of res judicata, and in particular, whether the proceedings and awards of the Land Disputes Tribunal (as adopted by the Magistrate’s Court) constituted a final determination by a court of competent jurisdiction capable of founding a plea of res judicata, Section 7 of the Civil Procedure Act which sets out the doctrine of res judicata is instructive. It provides:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”. 27.In the case of the Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] KECA 477 (KLR), this Court held:“… for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms:a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”See also John Florence Maritime Services Limited & Another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others (supra). 28.From the above, it is clear that the doctrine of res judicata, as codified under Section 7 of the Civil Procedure Act, bars a court from entertaining a matter that has already been directly and substantially in issue in a former suit between the same parties, or parties litigating under the same title, where such issue has been heard and finally determined by a court of competent jurisdiction. Applying these principles to the present case, it is evident that all the requisite elements of the doctrine were satisfied. 29.First, as regards the identity of the subject matter, the previous proceedings before the Land Disputes Tribunal and the subsequent suits before the Environment and Land Court concerned the same parcels of land, namely Kwale/Msambweni ‘A’/2830 and Kwale/Msambweni ‘A’/1781. In each instance, the dispute revolved around the parties’ competing claims to the rights and interests over those parcels. The subject matter was therefore directly and substantially the same in both proceedings. 30.Secondly, with respect to the identity of the parties, the record demonstrates that the dispute involved the same parties or persons litigating under the same title. The 1st Appellant brought the subsequent suits as heirs of the original registered owners, while the Respondents asserted rights on behalf of the Bwafumo family, both parties being of the same lineage that participated in the earlier Tribunal proceedings. The parties being either identical or claiming through the same predecessors in title, thereby satisfied the second requirement. 31.Thirdly, the issue in dispute was heard and finally determined in the earlier proceedings. The Land Disputes Tribunal, being a lawful forum at the time in 2005, heard the parties and rendered an award determining their respective rights over the suit properties. Fourth, the Tribunal’s award was subsequently adopted by the Magistrate’s Court in Land Case Nos. 29 of 2005 and 8 of 2009. Upon such adoption, the award assumed the status of a Judgment of the court with full legal force and enforceability. There is no evidence on the record disclosing that the Judgments were appealed against, set aside, or otherwise impeached through judicial review proceedings. Consequently, and unless otherwise demonstrated, which was not done, they remain valid, binding, and conclusive determinations by a court of competent jurisdiction. 32.Finally, the subsequent suits filed before the Environment and Land Court sought to re-litigate the same issues that had already been conclusively determined, namely the parties’ ownership of the suit parcels. Contrary to the principle of finality in litigation, this amounted to an attempt to reopen a dispute that had already been settled. 33.In effect, we find that the trial court rightly concluded that res judicata was properly established since all the essential elements were duly satisfied, as a result of which the Appellant’s suits were rendered incompetent. 34.The 1st Appellant has also sought to challenge the applicability of res judicata on the ground that the Land Disputes Tribunal allegedly lacked jurisdiction to determine the dispute. However, the record clearly shows that this issue was not raised before the trial court at the time the Preliminary Objection was canvassed. Of note is that the 1st Appellant did not challenge the orders and the decision of the tribunal. The learned Judge cannot therefore be faulted for not determining a question that was not before him. Accordingly, this ground is without merit. 35.Turning to the question as to whether the learned Judge was in error in relying on uncertified copies of proceedings and Judgments in reaching the impugned decision, a careful consideration of the record reveals that, once again, this issue was not raised before the trial court when the Preliminary Objection was canvassed, and that, therefore, it was not an issue for determination. The learned Judge cannot therefore be faulted for relying on the undisputed Tribunal record that served to clearly demonstrate the existence of the earlier proceedings, their subsequent adoption as Judgments of the Magistrate’s Court, and on which res judicata was properly established. Accordingly, this ground of appeal is also devoid of merit. 36.Regarding costs, the general principle is that costs follow the event as provided under Section 27 of the Civil Procedure Act, unless the court, for good reason, orders otherwise. The award of costs is therefore a matter within the discretion of the trial court and an appellate court will not interfere with that discretion, unless it is shown that the court acted on wrong principles, took into account irrelevant factors, failed to consider relevant factors, or that the award is plainly unjust. 37.In the present case, the learned Judge, having upheld the Preliminary Objection and found that the suits were res judicata, proceeded to dismiss the suits with costs to the Respondents. The Respondents having successfully demonstrated that the suits were barred, were properly awarded costs as compensation for having been unnecessarily dragged into litigation that had already been conclusively determined. 38.In the case of Supermarine Handling Services Ltd vs Kenya Revenue Authority [2010] eKLR, this Court held that:“Costs of any action, cause or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. See Section 27 (1) of the Civil Procedure Act”. 39.In the case of Devram Dattan vs Dawda [1949] EACA 35, it was held:“It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts....If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of the sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his discretion in that instance.’Thus, where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule.” 40.The 1st Appellant has not demonstrated that the learned Judge exercised his discretion injudiciously or on wrong principles. There is no evidence that the court considered irrelevant matters or failed to take into account relevant considerations. Nor has it been shown that the award of costs was excessive or oppressive. In the circumstances, there is no basis upon which this Court can interfere with the trial court’s exercise of discretion on costs. The order awarding costs to the respondents was proper and is hereby upheld. 41.In sum, the appeal is without merit and is accordingly dismissed. Costs to the respondent.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR…………...….............JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………...…...............JUDGE OF APPEALG. W. NGENYE-MACHARIA…………………............ JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR