Gogo & another v Mwasia & 6 others (Civil Appeal E110 of 2021) [2024] KECA 1827 (KLR)
The bottom line
#Kenya's Court of Appeal revived a land claim over four plots, ruling that one earlier court case only blocks claims over the exact same property and parties.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether ELC Case No. 120 of 2007 (OS) was res judicata HCCC No. 115 of 2011 in respect of claims over the suit properties, namely Plot Nos. Kwale/Diani Complex/391, 393, 395, 397 and 399
- 2.in particular, whether ELC Case No. 120 of 2007 (OS) was res judicata HCCC No. 115 of 2011 in respect of Plot No. Kwale/Diani Complex/391
- 3.whether the learned Judge erred in striking out in its entirety the deceased's suit for being res judicata with costs to all the respondents
- 4.what orders ought to be made in determination of the appellants' appeal, including orders on costs
Key legal issues
#Whether the deceased's suit was res judicata in respect of all five parcels of land
The suit was res judicata only in respect of Plot No. Kwale/Diani Complex/391, the sole subject matter of HCCC No. 115 of 2011; claims over the other four parcels were not barred.
HCCC No. 115 of 2011 involved only the deceased and the 6th and 7th respondents and concerned only Plot No. 391. The 2nd to 5th respondents, owners of the other four parcels, were not parties to that suit. The elements of res judicata must be satisfied conjunctively; since parties and subject matter differ as regards the other parcels, the bar does not apply. Default judgment had also been entered against the 2nd and 3rd respondents before HCCC No. 115 of 2011 was instituted.
Whether the learned Judge erred in striking out the entire suit
Yes; the striking out of the entire suit was erroneous because the application sought striking out only in respect of Plot No. 391 and the claims over the remaining parcels were yet to be determined on merits.
The 6th and 7th respondents' application specifically sought striking out of the suit only in respect of Plot No. 391. The learned Judge erroneously concluded that new parties and causes of action had been added to evade res judicata, when the suit had been filed in 2007 against the 1st to 5th respondents, long before HCCC No. 115 of 2011. The outcome in the earlier suit did not affect the claims regarding the other parcels.
Whether the claim over Plot No. Kwale/Diani Complex/391 remains litigable
No; that claim was conclusively determined in HCCC No. 115 of 2011 and the learned Judge's ruling upholding res judicata on that parcel was upheld.
The 6th and 7th respondents, claiming under the 1st respondent's title, obtained judgment for vacant possession of Plot No. 391. That determination closed the door to the deceased's claim against the 1st respondent, who no longer had title. The judgment remains unchallenged, and counsel for the appellants conceded the point.
Legal principles established
#- The doctrine of res judicata applies only where the parties and the subject matter of the two suits are the same; a judgment in a suit over one parcel does not bar claims over different parcels owned by different parties.
- The elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively, not disjunctively.
Court orders
#- 1.The ruling and orders of the ELC (C. K. Yano, J) dated 16th July 2020 in ELC Case No. 120 of 2007 (OS) be and are hereby set aside in so far only as they relate to the appellants' suit as against the 2nd, 3rd, 4th and 5th respondents
- 2.The deceased's suit as against the 4th and 5th respondents be and is hereby reinstated for hearing and determination on its merits
- 3.The ruling and orders of the ELC dated 16th July 2020 declaring the deceased's suit as against the 6th and 7th respondents res judicata Mombasa HCCC No. 115 of 2011 in so far as it relates to parcel No. Kwale/Diani Complex/391 be and is hereby upheld
- 4.Parties do bear their respective costs of the appeal
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
- Environment and Land Court at Mombasa
- ELC Case No. 120 of 2007 (OS)
- Jurisdiction invoked
- First appeal against ruling of the Environment and Land Court under the Court of Appeal's appellate jurisdiction (Criminal/ civil appellate statute invoked; specific provision not stated in the judgment)
Relief refused
#Setting aside the finding that the deceased's claim over Plot No. Kwale/Diani Complex/391 was res judicata HCCC No. 115 of 2011
The appellants conceded that the claim over that parcel was res judicata, and the judgment in HCCC No. 115 of 2011 remains unchallenged
Costs
That parties do bear their respective costs of the appeal.
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.
In principle, the doctrine of res judicata would not apply unless parties are the same and the subject matter is also the same.
That the ruling and orders of the ELC (C. K. Yano, J) dated 16th July 2020 in ELC Case No. 120 of 2007 (OS) be and are hereby set aside in so far only as they relate to the appellants' suit as against the 2nd, 3rd, 4th and 5th respondents;
That the deceased's suit as against the 4th and 5th respondents be and is hereby reinstated for hearing and determination on its merits;
That parties do bear their respective costs of the appeal.
Issues in the judgment
#The impugned ruling quoted in the judgment is internally inconsistent in its numbering (two paragraphs numbered 12) and refers to the earlier suit as 'ELC Case No. 115 of 2011' while elsewhere it is HCCC No. 115 of 2011
The 6th and 7th respondents' application is described as alleging the deceased's suit was res judicata 'HCCC No. 115 of 2007' whereas the earlier suit is elsewhere HCCC No. 115 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gogo & another v Mwasia & 6 others (Civil Appeal E110 of 2021) [2024] KECA 1827 (KLR)", Case Analysis (2024). Civil Appeal (E046 of 2021, by inference from memorandum dated 24th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1827/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.