[1995] KEHC 86 (KLR)
The court found that the issues raised in the present suit, namely the plaintiff's locus standi and the rectification of the land register for land parcel No North Nyakach/Agoro West/721, had already been determined between the same parties in a previous suit (HCCC No. 138 of 1987) and on appeal (Civil Appeal No....
Source-derived case information.
- Citation
- [1995] KEHC 86 (KLR)
- Parties
- Plaintiff: Moses Ondiegi Okoth; Defendant: Jonathan Orengo Obiayo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 322 of 1992
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit for Res Judicata
- Outcome
- suit struck out and dismissed for res judicata
- Legal Topics
- Res Judicata, Land Ownership Disputes, Rectification of Land Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Ondiegi Okoth
Plaintiff
Jonathan Orengo Obiayo
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit for Res Judicata
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata.
- 2 Whether the issues raised in the current suit were previously determined between the same parties in an earlier suit.
Ratio Decidendi
The court found that the issues raised in the present suit, namely the plaintiff's locus standi and the rectification of the land register for land parcel No North Nyakach/Agoro West/721, had already been determined between the same parties in a previous suit (HCCC No. 138 of 1987) and on appeal (Civil Appeal No. 146 of 1990). The doctrine of res judicata, as codified in section 7 of the Civil Procedure Act, precludes the re-litigation of matters that were or ought to have been decided in the earlier proceedings. Since the Court of Appeal had already determined the issue of locus standi against the plaintiff, and the other issues could have been raised, the present suit is barred and must...
Court Disposition
suit struck out and dismissed for res judicata
Orders
- The suit is struck out and dismissed on the ground of res judicata.
- The plaintiff shall pay the costs of the suit and the application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL CASE NO 322 OF 1992
MOSES ONDIEGI OKOTH .....................PLAINTIFF
VERSUS
JONATHAN ORENGO OBIAYO..............DEFENDANT
RULING
This is an application for an order that the suit be struck out on the ground that it is barred by the doctrine of res judicata, the Court of Appeal having decided the same matter between the same parties in Civil Appeal No. 146 of 1990.
It is conceded that these very parties were the same parties in the Court of Appeal over a matter which arose in the High Court at Kisumu in HCCC No 138 of 1987. There is no serious dispute that in the earlier case as in the present, the claim is ownership of the land parcel No North Nyakach/ Agoro West/721, and the rectification of the land register.
There, as in the instant case the issue basically were (a) the locus standiof the plaintiff and (b) whether a first registration under the Registered Land Act could be rectified, given the provisions of section 143(1) of that Act. These points arose squarely in the previous suit, and the Court of Appeal having decided the first issue against the plaintiff, found it unnecessary to consider the second one.
In law, as the same point arose, in the earlier case, and it is arising again, the doctrine of res judicataapplies, because under explanation (5) to section 7 of Civil Procedure Act, which is not expressly granted by the decree is, for the purposes of this section, deemed to have been refused. And, by explanation (4) any matter which ought to have been decided in a former suit is deemed to have been in issue and decided.
If that is a correct reading of the provisions on res judicataon this aspect, then this is a correct reading of the section.
This suit is barred. It is struck out and dismissed on the ground of res judicata.
The plaintiff shall pay the costs of the suit of the application.
I so order.
Datedand delivered at kisumu this 6th day of July 1995
R.C.N KULOBA
JUDGE