[1996] KECA 153 (KLR)
The Court of Appeal held that the High Court erred in striking out the suit as res judicata because two of the three prior suits did not support such a finding, and in the remaining suit, there was no finding as to whether the appellant was in possession of the land. Since the ascertainment of possession was...
Source-derived case information.
- Citation
- [1996] KECA 153 (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 Striking Out Suit as Res Judicata
- Outcome
- appeal allowed
- Judges
- AM Akiwumi, AB Shah
- Legal Topics
- Res Judicata, Adverse Possession, Rectification of Register, Preliminary Points of Law
- 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 Striking Out Suit as Res Judicata
Legal Issues
- 1 Whether the suit was properly struck out as res judicata.
- 2 Whether the issue of adverse possession had been conclusively determined in prior suits.
- 3 Whether a preliminary point of law can be raised where facts are in dispute.
Ratio Decidendi
The Court of Appeal held that the High Court erred in striking out the suit as res judicata because two of the three prior suits did not support such a finding, and in the remaining 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 required a full hearing on its merits. The court emphasized that preliminary points of law should not be used to dispose of cases where facts are in dispute, as this practice can increase costs and confuse issues. The appeal was allowed, and the case remitted to the High Court for hearing on...
Court Disposition
appeal allowed
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
26 paragraphs
REPUBLIC OF KENYA
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
1. SAMUEL KAMAU KAMUNGE
2. JOSEPH NJOGU KAMUNGE...............................RESPONDENTS
(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) **********************
JUDGMENT 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/1266; MUTIRA/KAGUYU/1267 and MUTIRA/KAGUYU/1268 to be rectified to its original title Number MUTIRA/KAGUYU/449 and for the defendants' names 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 judgment, 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 costs 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