[2023] KEELC 18063 (KLR)
The court found that it was not clear whether the plaintiffs were the widows of Wilson Oduor Ouma, the defendant in the previous suit. As such, the court could not conclusively determine whether the doctrine of res judicata applied at this stage. The court deferred the determination of the res judicata issue to the...
Source-derived case information.
- Citation
- [2023] KEELC 18063 (KLR)
- Parties
- Plaintiff: Mornica Agola Oduor; Plaintiff: Consolata Atieno Oduor; Defendant: Melitus Oluoch Odero
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E008 of 2022
- Procedural Posture
- Notice of Motion / Ruling on Preliminary Objection (res Judicata)
- Outcome
- Application to strike out the suit on grounds of res judicata deferred; suit to proceed to full hearing.
- Judges
- AY Koross
- Legal Topics
- Res Judicata, Striking Out Suit, Land Ownership Disputes, Parties to Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mornica Agola Oduor
Plaintiff
Consolata Atieno Oduor
Plaintiff
Melitus Oluoch Odero
Defendant
Procedural Posture
Notice of Motion / Ruling on Preliminary Objection (res Judicata)
Legal Issues
- 1 Whether the plaintiffs' suit is res judicata in light of a previous determination in Kisumu HCCC no 69B of 1996.
- 2 Whether the plaintiffs, not being parties or legal representatives in the previous suit, are barred from litigating the current claim.
- 3 Whether the originating summons should be struck out for being res judicata.
Ratio Decidendi
The court found that it was not clear whether the plaintiffs were the widows of Wilson Oduor Ouma, the defendant in the previous suit. As such, the court could not conclusively determine whether the doctrine of res judicata applied at this stage. The court deferred the determination of the res judicata issue to the final hearing, holding that the matter required further factual clarification. The application to strike out the suit was therefore not granted at this interlocutory stage, and the case was ordered to proceed to a full hearing.
Court Disposition
Application to strike out the suit on grounds of res judicata deferred; suit to proceed to full hearing.
Orders
- Determination of the issue of res judicata is deferred to the final hearing.
- The matter shall be fast tracked for main hearing.
Full Case Text
Judgment text and source record
24 paragraphs
Oduor & another v Odero (Environment & Land Case E008 of 2022) [2023] KEELC 18063 (KLR) (8 June 2023) (Ruling)
Neutral citation: [2023] KEELC 18063 (KLR)
Republic of Kenya
In the Environment and Land Court at Siaya
Environment & Land Case E008 of 2022
AY Koross, J
June 8, 2023
Between
Mornica Agola Oduor
1st Plaintiff
Consolata Atieno Oduor
2nd Plaintiff
and
Melitus Oluoch Odero
Defendant
Ruling
1. By way of a notice of motion dated February 06, 2023 made pursuant to Sections 1A, 1B, 3A and 7 of the Civil Procedure Act and Order 2 Rule 15 (1) (b), (c) and (d) of the Civil Procedure Rules, the defendant moved this court and sought the following orders:a.That the plaintiffs’ originating summons be struck out.b.That costs be awarded to the defendant.
2. The application was premised on the grounds enumerated on the face of the motion and on the annexed affidavit of the defendant Melitus Oluoch Odero deposed on February 07, 2023.
3. The defendant contended that the suit was res judicata since the issues had been determined on August 19, 2013 in Kisumu HCCC no 69B of 1996 between him as the plaintiff against several defendants. One such defendant was Wilson Oduor Ouma who was the plaintiffs’ husband. The dispute was over land parcel no. Uholo/Ugunja/264 (hereinafter referred to as “the suit property”).
4. The plaintiffs filed grounds of opposition dated March 18, 2023. They stated that they had not been parties in the previous suit, they were not the legal representatives or administrators of the estate of Wilson Oduor Ouma, their claim was different and they were litigating under different titles. Consequently, their claim was not res judicata.
5. Mr Onyango, counsel for the defendant, filed written submissions dated April 11, 2023 while Mr Omollo, counsel for the plaintiffs filed his submissions dated March 10, 2023.
5. I have considered the notice of motion, the affidavit in support together the several annexures. I have also considered the grounds of opposition and parties’ submissions.
5. I have taken all relevant facts into account. For the reason I am at this point uncertain if the plaintiffs are the widows of Wilson Oduor Ouma, I have deferred determination of the issue of res judicata. This issue shall be determined when this court renders its final determination. This matter shall be fast tracked for main hearing.
DELIVERED AND DATED AT SIAYA THIS 8TH DAY OF JUNE 2023. HON. A. Y. KOROSSJUDGE08/06/2023Ruling delivered in the Presence of:Mr. Omollo Kennedy for the plaintiffsMr. Onyango for the defendantCourt assistant: Ishmael Orwa