ROBERT M. MUGA v MUCHANGI KIUNGA & 2 others [2007] KECA 464 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed three appeals in a 35-year land feud, confirming that striking out a suit can bar you forever unless you appeal or allege fraud.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Originating Summons in HCCC No. 1686 of 1994 (O.S) was barred as res judicata by O'Connor J's striking out of HCCC No. 3645 of 1983 (O.S)
- 2.Whether a suit struck out under Order VI rule 13 of the Civil Procedure Rules amounts to a matter 'heard and finally decided' for purposes of Section 7 of the Civil Procedure Act
- 3.Whether there remained any proceedings capable of being quashed by certiorari in respect of Nyeri RMCC No. 32 of 1971, and whether the application was time-barred
- 4.Whether the defence of res judicata could bar HCCC No. 2031 of 1998, which included new parties (the assignees of the suit land) and allegations of fraud and collusion
Key legal issues
#Whether a striking-out under Order VI rule 13 constitutes a decision on the merits for res judicata
Yes - the striking out of HCCC No. 3645 of 1983 (O.S) by O'Connor J operated as res judicata, barring the later Originating Summons before Bosire J
The parties occupied the same positions in both suits, the subject matter was the same land, and the facts were known to Muga when he filed the first suit. Order VI rule 13 mandates the court to strike out pleadings on stated grounds; a decision whether to strike out goes to the merits of the suit and has the same effect as a dismissal upon evidence. Muga neither appealed nor sought review of O'Connor J's decision.
Whether certiorari could issue to quash orders in a long-finalised subordinate court suit
No - the suit had been disposed of in 1971 and all appeals exhausted, so there were no pending proceedings to remove; the application was also out of time and a product of laches
Osiemo J could not be faulted: the certiorari application was brought twenty-five years after the suit was disposed of and after all appeals, including to this Court, had been exhausted. There were therefore no pending proceedings capable of being quashed, and the time limits in Order LIII Rule 2 made the application hopelessly belated.
Whether res judicata barred the later suit against Kiunga's transferees
No - the assignees of Muga's developments were necessary and proper parties who were not party to the earlier suits, and allegations of fraud vitiate the res judicata defence
Muga could not recover title or compensation for developments assigned to Kiunga's co-defendants without joining them; res judicata does not apply where necessary and proper parties are before the later court. Further, fraud is an extrinsic collateral act which vitiates solemn proceedings, so the plea of res judicata cannot be used to shield a transaction alleged to be fraudulent.
Abuse of process by both parties through decades of incessant applications and suits
The Court deprecated the parties' conduct in filing numerous unwarranted and confusing applications and suits over some 35 years
The Court likened the litigation to Jarndyce and Jarndyce in Bleak House: a dispute that has consumed health and wealth across generations of judges and practitioners. It criticised the confusion and lack of focus produced by the incessant filings by both sides.
Legal principles established
#- A suit struck out under Order VI rule 13 of the Civil Procedure Rules is a decision on the merits and operates as res judicata against a later suit on the same subject matter between the same parties
- A party who neither appeals nor seeks review of a decision cannot relitigate the same facts in a second suit, which will be barred as res judicata
- Res judicata does not bar a later suit where necessary and proper parties who were not before the earlier court must be joined, or where fraud is alleged
- Time for applying for orders of certiorari is of the essence and limited by Order LIII Rule 2; belated applications will be refused for laches
Court orders
#- 1.Civil Appeal No. 102 of 1998 dismissed with no order as to costs
- 2.Civil Appeal No. 267 of 1998 dismissed with no order as to costs
- 3.Civil Appeal No. 256 of 1998 dismissed with no order as to costs
- 4.Nairobi H.C.C.C. No. 2031 of 1998 to be set down for hearing and the interim orders granted on 27th May 1998 by Githinji J extended until the hearing and determination of the suit
- 5.The defendants/appellants, their servants, agents and/or employees restrained from evicting the plaintiff/respondent and his family from the suit land Mwerua/Mukure/23 until the hearing and determination of the suit
- 6.All orders made in Nyeri SRMCC No. 31 of 1971 stayed pending the hearing and determination of Nairobi H.C.C.C. No. 2031 of 1998
- 7.The Officer Commanding King'ong'o GK Prison (Nyeri) to release the plaintiff/respondent forthwith and return the warrants to court unexecuted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi and Nyeri
- H.C.C.C. No. 1686 of 1994 (O.S) (Bosire, J.); H.C.C.C. No. 2031 of 1998 (Githinji, J.); H.C. Misc. Application No. 61 of 1996 (Osiemo, J.)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court (consolidated appeals from three High Court decisions)
- Consolidated with
- Civil Appeal 256 of 1998, Civil Appeal 267 of 1998
Relief refused
#Muga's challenge to Bosire J's res judicata finding in Civil Appeal No. 102 of 1998
The subject matter, parties and facts were the same as in the earlier suit struck out by O'Connor J, which had not been appealed or reviewed
Certiorari and prohibition sought against the mesne profits orders in Nyeri RMCC No. 32 of 1971 (Civil Appeal No. 267 of 1998)
There were no pending proceedings capable of being quashed and the application was made 25 years later, in breach of Order LIII Rule 2 time limits
Kiunga and the other appellants' application to strike out HCCC No. 2031 of 1998 as res judicata (Civil Appeal No. 256 of 1998)
The later suit introduced necessary parties (the assignees of the land) and allegations of fraud, to which res judicata does not apply
Costs
Each of the three appeals was dismissed with no order as to costs ('We make no order as to costs')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We hold, therefore, that the striking out of the suit before O'Connor J. operated as res judicata.
Fraud is, in our view, an extrinsic collateral act which vitiates any solemn proceedings of court of justice and the defence of res judicata cannot be allowed to be pleaded
Muga was guilty of laches and his application for an order of certiorari was hopelessly belated and was properly refused.
Civil Appeal No. 102 of 1998 is hereby ordered dismissed with no order as to costs.
The officer Commanding King'ongo' GK Prison (Nyeri) shall release the plaintiff/respondent forthwith and shall return the said warrants to Court forthwith unexecuted.
Issues in the judgment
#Internal inconsistency in the numbering of the subordinate court suit, referred to variously as No. 32 of 1971 and No. 31 of 1971
Date discrepancy: paragraph 22 states the Notice of Motion was filed on 28th May 1996, while the appeal heading records the ruling in H.C. Misc. Application No. 61 of 1996 as dated 19th July 1996; the application number is also given as Nyeri HCC Misc. Civil Application No. 66 of 1996 versus 61 of 1996
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ROBERT M. MUGA v MUCHANGI KIUNGA & 2 others [2007] KECA 464 (KLR)", Case Analysis (2007). Civil Appeal 102, 256 & 267 of 1998 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/464/eng@2007-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.