[1996] KECA 105 (KLR)
The Court of Appeal held that the High Court erred in striking out the suit on the ground of res judicata. Two of the three prior suits relied upon did not support a finding of res judicata, and in the third suit, there was no finding as to whether the appellant was in possession of the land. Since the ascertainment...
Source-derived case information.
- Citation
- [1996] KECA 105 (KLR)
- Parties
- Appellant: John Karinga Kimanga; Respondent: Samuel Kamau Kamunge; Respondent: Joseph Njogu Kamunge
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 29 of 1996
- Procedural Posture
- Civil Appeal / Appeal From Judgment and Order Striking Out Suit at High Court on Preliminary Point of Law
- Outcome
- appeal allowed; case remitted for hearing on merits
- Judges
- AM Akiwumi, AB Shah
- Legal Topics
- Adverse Possession, Res Judicata, Rectification of Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Karinga Kimanga
Appellant
Samuel Kamau Kamunge
Respondent
Joseph Njogu Kamunge
Respondent
Procedural Posture
Civil Appeal / Appeal From Judgment and Order Striking Out Suit at High Court on Preliminary Point of Law
Legal Issues
- 1 Whether the suit was barred by res judicata due to previous litigation involving the same parties and subject matter.
- 2 Whether the issue of adverse possession could be determined without a full hearing of the facts.
Ratio Decidendi
The Court of Appeal held that the High Court erred in striking out the suit on the ground of res judicata. Two of the three prior suits relied upon did not support a finding of res judicata, and in the third suit, there was no finding as to whether the appellant was in possession of the land. Since the ascertainment of possession was essential to the issue of adverse possession, and no such finding had been made, the matter could not be determined as a preliminary point of law. The issue required a full hearing on the merits. The appeal was therefore allowed, and the case remitted to the High Court for hearing.
Court Disposition
appeal allowed; case remitted for hearing on merits
Orders
- The appeal is allowed with costs here and in the court below.
- The case is remitted to the superior court for hearing on merits.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NYERI
(CORAM: AKIWUMI, SHAH, AND LAKHA, JJ.A.)
CIVIL APPEAL NO. 29 OF 1996
BETWEEN
JOHN KARINGA KIMANGA…………………..…...………APPELLANT
AND
SAMUEL KAMAU KAMUNGE………………..…….. 1ST RESPONDENT
JOSEPH NJOGU KAMUNGE………………......….. 2ND RESPONDENT
(Appeal from the judgment and order of the High Court of Kenya at Nyeri (Tunoi,J.) dated 23rd February, 1993
IN
H. C. C. CASE NO. 154 OF 1990)
***************************
JUDGEMENT OF THE COURT
This is an appeal by the unsuccessful plaintiff against the decree of the superior court (Tunoi, J, as he then was) delivered on February 23, 1993 whereby he struck out the plaintiff’s suit on a so called preliminary point of law that it was res judicata, by an Originating Summons filed on December 5, 1990 the plaintiff sought orders, inter alia, for the register concerning three Land Parcels Number MUTIRA/KAGUYU/1266MUTIRA/KAGUYU/1267andMUTIRA/KAGUYU/1268 to be rectified to its original title Number MUTIRA/KAGUYU/449 and for the defendants’ name to be deleted from the three Land Parcels on the ground of adverse possession. At the hearing of the summons, the defendant’s advocate, without any notice whatsoever, argued that the suit was res Judicata and the learned judge held that there were three suits prior to the instant one where the matter raised in the summons was substantially in issue and that the plaintiff could not therefor raise the issue of adverse possession.
At the hearing of the appeal the respondents’ advocate conceded and, in our opinion rightly, that two of the three prior suits did not support a finding of res judicata. It follows that the learned judge was, with great respect, in error in basing his judgment on those two prior suits. As far as the Embu R.M.C.C. 109 of 1983 in which the plaintiff was sued for eviction it was held that he had no interest in the land which belonged to the first respondent.
There is no finding if the plaintiff was in fact in possession of the land in question in that case. The ascertainment of that fact was essential to the finding of the learned judge that the present suit was barred but there was no such finding and, in the absence of thorough investigation, there could be none. There was, therefore, no material before the learned judge on which a finding as to possession could be properly made.
Accordingly, in our judgement, the decision of the learned judge was, with respect, made in error. The issue before the superior court clearly required a full hearing and we reiterate that the practice of raising points, which should be argued in the normal matter, by way of preliminary point of law does nothing but unnecessarily increase costs and, on occasion, confuse the issues as it certainly did in this case. A preliminary point cannot be raised if any fact has to be ascertained.
For the reasons above stated, the appeal is allowed with cost here and in the court below and the case is remitted to the superior court for hearing on merits.
Dated and delivered at Nyeri this 18th day of October,1996.
A. M. AKIWUMI
……………………
JUDGE OF APPEAL
A. B. SHAH
……………………….
JUDGE OF APPEAL
A. A. LAKHA
………………………
JUDGE OF APPEAL