[2020] KEELC 2359 (KLR)
The court found that the dispute in ELC No. 245 of 2017 concerns the same parcel of land (Kisumu/Dago/566) and involves the same parties as in ELC No. 13 of 2015. The issue of ownership was conclusively determined in the earlier suit, where the court declared the 1st defendant as the absolute and indefeasible owner....
Source-derived case information.
- Citation
- [2020] KEELC 2359 (KLR)
- Parties
- Plaintiff: Maurice Olwal Olwal; Defendant: Michael Otieno Wagude; Defendant: The Registrar Lands Kisumu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 245 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- suit struck out as res-judicata and abuse of process
- Judges
- TM Olando
- Legal Topics
- Res Judicata, Locus Standi, Ownership Disputes, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Olwal Olwal
Plaintiff
Michael Otieno Wagude
Defendant
The Registrar Lands Kisumu
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res-judicata in light of the prior determination in ELC No. 13 of 2015.
- 2 Whether the plaintiff has locus standi to bring the present suit.
- 3 Whether the current suit constitutes an abuse of court process.
Ratio Decidendi
The court found that the dispute in ELC No. 245 of 2017 concerns the same parcel of land (Kisumu/Dago/566) and involves the same parties as in ELC No. 13 of 2015. The issue of ownership was conclusively determined in the earlier suit, where the court declared the 1st defendant as the absolute and indefeasible owner. The court held that the issues raised in the present suit ought to have been raised in the previous proceedings. Consequently, the doctrine of res-judicata applies, barring the plaintiff from re-litigating the same issues. The court also found the suit to be an abuse of court process and lacking in locus standi, as the plaintiff was attempting to challenge a matter already...
Court Disposition
suit struck out as res-judicata and abuse of process
Orders
- The suit is struck out as res-judicata and an abuse of court process.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO. 245 OF 2017
MAURICE OLWAL OLWA.............................................PLAINTIFF
VERSUS
MICHAEL OTIENO WAGUDE..............................1ST DEFENDANT
THE REGISTRAR LANDS KISUMU....................2ND DEFENDANT
RULING
The Preliminary Objection is dated 17th September, 2018 filed by the defendant on grounds that the matter is res-judicata and that the plaintiff has no locus standi and that he is meddling with the property of the deceased.
The 1st defendant submits suit number ELC 13 of 2015 was between the plaintiff and defendant herein. The parties were litigating under the same title. The issues herein were determined in suit No. ELC 13 of 2015. The court in ELC No. 13 of 2015 was competent to try the suit and subsequent suit. The plaintiff on his part submits that the two cases present two different causes of action. One was based on eviction and the other on fraud.
I have considered rival submissions and do find that in ELC No. 13 of 2015, the parties were Michael Otieno Wagunde, plaintiff and Morris Olwal, defendant. The dispute revolved on ownership of parcel number Kisumu/Dago/566. The court found the plaintiff to be the absolute and indefeasible owner of the property and that no challenge to his title has been mounted as required by law. He was ordered to enjoy the full right of the property.
In ELC no. 245 of 2017, the parties are the same thus Maurice Olwal Olwal as plaintiff and Michael Otieno Wagunde as the 1st defendant and the Land Registrar, Kisumu as the 2nd defendant. The dispute revolves on ownership of Kisumu/Dago/566. The issues of ownership raised in suit No. 245 of 2017 were supposed to be raised in ELC No. 13 of 2015.
I do find that the issues raised in 245 of 2017 which is the ownership of have technically been determined in ELC 13 of 2015. The plaintiff has come before the same court that determined the ownership of the same property, thus parcel number Kisumu/Dago/566.
I do find that the suit herein is res-judicata and an abuse of court process and is hereby struck out. Costs to the defendant.
DATED, DELIVERED and SIGNED THIS 22nd .DAY OF MAY, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
This judgment is hereby delivered to the parties by electronic mail due to the measures restricting court operations due to COVID -19 pandemic and in light of directions issued by the Honourable Chief Justice and with the consent of the parties.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE