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Court of AppealAllowedCivil Appeal No. 270 of 2014· [2019] KECA 490 (KLR)

Evanson Gachie Kariuki & 2 others v Francis Kariuki Wachira (deceased represented by Margaret Wamwitha Kariuki) & 1 other

Court of Appeal of Kenya
19 July 2019
AVAlnashir VisramWKW. KaranjaJOJ. Otieno-Odek
1,965 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a land suit alleging fraud cannot be thrown out as repetitious when fraud was never actually decided in earlier cases.

What this practically means

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Executive summary

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The Court of Appeal (Visram, Karanja and Otieno-Odek, JJA) allowed an appeal against a ruling of Gitumbi, J. of the Environment and Land Court dated 21 March 2014, which had upheld a preliminary objection and struck out the appellants' suit over LR No. Dagoretti/Uthiru/282 as res judicata. The trial court had reasoned that ownership of the suit property had been determined by the Kikuyu Land Tribunal and in Nyeri High Court Succession Cause No. 219 of 2001, and that the appellants should have raised the issue of fraudulent transfer in those earlier proceedings. The Court of Appeal held that the trial judge erred: fraud was not an issue before the Tribunal or the Succession Court and could not have been determined there; fraud must be specifically pleaded and distinctly proved, largely through oral evidence tested by cross-examination. The Court further found that the judge failed to consider the Tribunal's award, which recommended cancellation of the title issued to Peter Wanganga Kihara and issuance of titles to the respondents, a recommendation pointing towards an error in documentation, and that the judge ought to have called for and examined the alleged ruling of Ombija, J., which was prima facie relevant although not on record. The Court acknowledged the abuse-of-process principle that matters which could and should have been litigated earlier cannot be raised later, but held it inapplicable on these facts. The appeal was allowed, the ELC ruling was set aside in its entirety, the appellants' suit was reinstated for hearing, and each party was ordered to bear its own costs in the appeal and in the court below.

Key legal issues

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01

Whether res judicata barred the appellants' suit alleging fraudulent transfer and registration

Holding

Res judicata did not apply because fraud was not an issue before the Kikuyu Land Tribunal or in the High Court Succession Cause, and allegations of fraud cannot be dismissed summarily when they were not in issue in previous suits.

Reasoning

The Court examined the Tribunal proceedings and award, and found the Judge erred in dismissing the suit on res judicata without considering the Tribunal's recommendation pointing to an error in documentation. The Judge also erred in failing to call for and examine the alleged ruling of Ombija, J., which prima facie was relevant. Since fraud was not in issue in the earlier proceedings, it could not have been litigated there, and the doctrine of res judicata was inapplicable.

p. 3
02

Pleading and proof of fraud

Holding

Fraud must be specifically pleaded, with particulars stated on the face of the pleading, and must be distinctly proved; it cannot be left to inference.

Reasoning

The Court endorsed the established rule as stated by Tunoi, JA in Vijay Morjaria, observing that fraud is proved largely by oral evidence tested through cross-examination. Because fraud was not before the Tribunal or the Succession Court, those fora could not determine it, which undermined the trial court's res judicata reasoning.

p. 3

Legal principles established

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  • Allegations of fraud cannot be dismissed summarily on the basis of res judicata where fraud was not in issue in the previous suits.
  • Res judicata does not bar a fresh suit on a matter (such as fraud) that was not in issue and could not be determined in the earlier proceedings.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the Environment and Land Court dated 21st March 2014 set aside in entirety
  3. 3.Appellants' suit filed as ELC No. 654 of 2009 reinstated
  4. 4.Each party to bear its own costs in this appeal and before the Environment and Land Court
On appeal from
High Court of Kenya at Nairobi, Milimani Law Courts (Environment and Land Court)
H.C ELC No. 654 of 2009
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over the High Court (Environment and Land Court) ruling

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, "Evanson Gachie Kariuki & 2 others v Francis Kariuki Wachira (deceased represented by Margaret Wamwitha Kariuki) & 1 other", Case Analysis (2019). Civil Appeal No. 270 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/490/eng@2019-07-26

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