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Court of AppealAllowedCivil Appeal No 81 of 2017

Esther Nzingo Kalume v Lawrence Sharriff Samson Katiti [2018] KECA 524 (KLR)

Court of Appeal of Kenya
7 June 2018
2,889 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a past rent case didn't block a land dispute, so the land suit goes back to court for a full hearing.

What this practically means

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Executive summary

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The appellant, substituted for her late mother Rachel Kavumbi, sued the respondent in the Environment and Land Court at Mombasa seeking his eviction from part of a Mtwapa plot and a permanent injunction, alleging he was a tenant who had declined to complete a purchase agreement. The respondent applied to strike out the suit under Section 7 of the Civil Procedure Act as res judicata, relying on a Kilifi rent suit (SRMCC No. 66 of 2006/2007) between the appellant's mother and himself that had been settled by a consent judgment providing for payment of Kshs.173,805 in instalments. Omollo J. struck out the ELC suit as res judicata, holding that the consent judgment included the purchase price and that the appellant could not generate a new cause of action over the same land, with costs to the respondent. On appeal, the Court of Appeal discerned two issues: whether the two suits involved the same litigated issues, and whether the ELC suit was thereby barred. Applying the conjunctive elements of Section 7, the court held the Kilifi suit was a liquidated rent claim with no claim over title, agreed the Kilifi court had jurisdiction over those issues, but parted company with the learned Judge on similarity: the plot number was not identified, it was unclear what the purchase price covered, and questions of tenancy, sale and ownership required substantive determination. Allowing the appeal, the court set aside the ruling of 20th July 2017, dismissed the respondent's notice of motion, reinstated the ELC suit for hearing before a Judge other than Omollo J., and ordered that costs of the appeal abide the outcome of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the two suits involved the same issues that were litigated
  2. 2.Whether the suit before the ELC was res judicata by dint of the decision in SRMCC No 66 of 2007

Key legal issues

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01

Whether the Kilifi SRMCC rent suit and the ELC suit involved the same issues so as to trigger res judicata

Holding

The issues were not the same; the Kilifi suit was a liquidated claim for rent and mesne profits settled by consent, with no claim over title, whereas the ELC suit concerned eviction of a tenant and title to the suit property. Res judicata was therefore not established.

Reasoning

The court applied the conjunctive test under Section 7 of the Civil Procedure Act: the same issues must have been directly and substantially in issue, between the same parties under the same title, heard and finally determined by a competent court. The Kilifi suit concerned a liquidated rent claim; title and transfer were never pleaded there. Striking out the ELC suit would leave substantive questions of tenancy, sale and ownership unresolved, so substantive justice required the suit to proceed to hearing.

p. 3
02

Whether the magistrate's court had jurisdiction over the issues in the Kilifi suit

Holding

The Kilifi court had jurisdiction to deal with the issues raised therein, namely the liquidated rent claim, because no claim over title was made.

Reasoning

The court agreed with the learned Judge that since the Kilifi suit was a liquidated claim for rent and mesne profits with no claim over title to registered land, the magistrate's court was competent to hear and determine it. The competency of the former court is one of the conjunctive elements of res judicata, and this element was satisfied without need to reach the broader question of magistrates' jurisdiction over registered land disputes.

p. 3
03

Whether the consent order in the Kilifi suit settled the question of purchase price and transfer of the suit property

Holding

The learned Judge erred in finding that the consent order settled the purchase price issue, since the plot number was not stated and it was unclear what the purchase price was paid for.

Reasoning

The consent order did not identify the plot number of the suit property, and on the Judge's own reasoning it was not clear whether the purchase price related to a house without land, to the assignment of a lease, or to a specific plot. Treating the Kilifi dispute as identical to the ELC dispute would also contradict the Judge's finding that the Kilifi court had jurisdiction over title matters that were never pleaded there. These questions required a substantive determination at trial.

p. 4

Legal principles established

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  • For the bar of res judicata to be raised and upheld, the prescribed elements must be satisfied conjunctively, not disjunctively
  • The doctrine of res judicata is a complete estoppel that debars the court itself from entertaining a suit caught by it
  • A suit for recovery of rent is not automatically a bar to a subsequent suit for recovery of the same land on the strength of title; consent orders in rent proceedings do not necessarily settle questions of sale and transfer of land that were not pleaded

Court orders

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  1. 1.The appeal is allowed
  2. 2.The orders made by the ELC on 20th July 2017 are set aside and substituted with an order dismissing the respondent's notice of motion dated 13th July 2015
  3. 3.The suit being ELC No 66 of 2013 is reinstated for hearing before any other Judge other than Omollo, J.
  4. 4.Costs of the appeal shall abide the outcome of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority

Wrote the judgment

On appeal from
Environment and Land Court of Kenya at Mombasa
Mombasa E.L.C No 66 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal against the decision of the Environment and Land Court (statutory appellate jurisdiction; no constitutional provision cited in the judgment)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is allowed with the result that the orders made on 20 th July 2017 is hereby set aside and substituted with an order dismissing the respondent’s notice of motion dated 13 th July 2015. The suit being ELC No 66 of 2013 is reinstated for hearing before any other Judge other than Omollo, J.
p. 4Final orders - appeal allowed, ELC suit reinstated
The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties –because it is the court itself that is debarred by a jurisdictional injunction, from entertaining such suit.
p. 3Nature and effect of res judicata
for the bar of res judicata to be effectively raised and upheld the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms
p. 3Conjunctive elements of res judicata
The philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end.
p. 3Rationale for res judicata
We think substantive justice in regard to the dispute between the parties would be attained if the suit being ELC No 66 of 2013 is given a hearing.
p. 4Substantive justice favoured over striking out

Issues in the judgment

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minor

The Kilifi suit is referred to inconsistently as SRMCC No. 66 of 2006 and SRMCC No. 66 of 2007 within the judgment

minor

The notice of motion is dated 15th July 2015 in one passage and 13th July 2015 in another

minor

The consent order is described as arising from SRMCC No. 66 of 2007 although the suit was filed in 2007 while the opening paragraph refers to 2006

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Esther Nzingo Kalume v Lawrence Sharriff Samson Katiti [2018] KECA 524 (KLR)", Case Analysis (2018). Civil Appeal No 81 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/524/eng@2018-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.