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Court of AppealPartially AllowedCivil Appeal (Kisumu)

Hamisi & another (Suing as the administrators of the Estate of the Late Hamisi Shaban Otinga - Deceased) v Shiraho & another (Suing in their capacity as the administrators of the Estate of the Late Richard Shiraho) (Civil Appeal 60 of 2020) [2025] KECA 539 (KLR)

Court of Appeal of Kenya
21 March 2025
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a land suit struck out as res judicata, ruling that when the underlying judgment is set aside on appeal, the basis for striking out collapses.

What this practically means

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Executive summary

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The appellants, administrators of the estate of Hamisi Shaban Otinga (deceased), appealed against a ruling of Ombwayo J. of the Environment and Land Court at Kisumu dated 20th December 2019, dismissing their application for review of an earlier ruling of 13th July 2016 by Kibunja J., which had upheld a preliminary objection striking out their suit (Civil Case No 140 of 2015) as res judicata on the basis of the decision in Winam SRMCC No. 495 of 2004. That underlying decision had, however, been set aside on appeal by Olola J. on 24th October 2017 in Kisumu ELC No. 4 of 2017, which declared the subsequent allocation of the suit property to the respondent illegal. The Court of Appeal, hearing the first appeal on 18th November 2024, framed the main issue as whether the trial Judge exercised his discretion injudiciously in declining review. Applying the established grounds for interfering with discretionary decisions from United India Insurance v East African Underwriters, the Court found the Judge failed to consider the existence of the conflicting ELC decisions and the pending appeal at the time of the preliminary objection, erred in holding that the appellate judgment had no effect on the res judicata ruling when it fundamentally destroyed its basis, and contradicted himself in finding no review had been sought when the application before him sought exactly that. The appeal was allowed: the ruling of 20th December 2019 was set aside, the appellants' suit in ELC Civil Case No 140 of 2015 was reinstated for hearing on merit, and each party was ordered to bear their own costs of the application and the appeal. The judgment binds subordinate courts and the ELC on the effect of a set-aside judgment on a prior res judicata finding.

Questions the Court framed

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

  1. 1.Whether the learned trial Judge exercised his discretion injudiciously in declining to review and set aside the ruling of 13th July 2016
  2. 2.Whether the appellants demonstrated sufficient cause for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
  3. 3.Whether the delay of three years in filing the application for review was sufficiently explained

Key legal issues

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01

Interference with the trial court's discretion on an application for review

Holding

The learned Judge misapprehended the facts and failed to apply his mind to crucial factors amounting to sufficient reason for review, warranting appellate interference.

Reasoning

At the time of the review application, two conflicting ELC decisions existed: the 13th July 2016 ruling upholding res judicata, and the 24th October 2017 judgment setting aside the underlying Winam SRMCC decision. The existence of the pending appeal was disclosed to the ELC at the hearing of the preliminary objection. The Judge also erred in holding the appellate judgment had no effect on the res judicata ruling, and contradicted himself in finding no review had been sought when the very application before him sought review.

p. 5
02

Effect of setting aside an underlying judgment on a res judicata finding

Holding

A judgment on appeal setting aside the decision that founded a res judicata ruling destroys the basis of that ruling and cannot be dismissed as having no effect on it.

Reasoning

The ELC ruled in 2016 that the suit was res judicata because the Winam SRMCC No. 495 of 2004 decision bound the parties. That decision was later set aside on appeal in Kisumu ELC No. 4 of 2017. The Court held it was a factual and legal error to find the appellate judgment had no effect on the res judicata ruling, since it fundamentally altered and destroyed its basis.

p. 5
03

Duty of a first appellate court

Holding

The Court, as a first appellate court, must reconsider the evidence, evaluate it and draw its own conclusions of fact and law, departing from trial findings only where not based on the record, founded on wrong principles, or injudiciously exercised discretion.

Reasoning

The Court reiterated the standard from Selle & Another v Associated Motor Boats Co. Ltd & Others, as qualified by Jabane v Olenja and Mbogo & Another v Shah, before assessing whether the trial Judge's discretion was exercised injudiciously.

p. 4

Legal principles established

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  • The Court of Appeal will only interfere with a discretionary decision on the established grounds: misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take account of relevant considerations, or where the decision is plainly wrong.
  • A subsequent appellate judgment that sets aside an earlier judgment fundamentally alters and destroys the basis of a prior finding of res judicata founded on that judgment, and constitutes sufficient reason for review.

Court orders

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  1. 1.Set aside the ruling and orders of Ombwayo J. dated 20th December 2019 dismissing the application for review
  2. 2.Reinstated the appellants' suit in ELC at Kisumu Civil Case No 140 of 2015 for hearing on merit
  3. 3.Each party to bear their own costs of the application dated 8th March 2019 and of the appeal

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Kisumu
Civil Case No 140 of 2015 (ruling of 20th December 2019)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Procedure Act)

Relief refused

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Costs of the application dated 8th March 2019 and of the appeal against the respondents

Given the circumstances giving rise to the appeal, the Court declined to award costs

p. 5

Costs

Each party bears their own costs of the application dated 8th March 2019 and of this appeal.

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.

This appeal is therefore for allowing, and we accordingly hereby set aside the ruling and orders of Ombwayo J. dated 20th December 2019, with the result that the appellants' suit in the ELC at Kisumu, being Civil Case No 140 of 2015, is reinstated for hearing on merit.
p. 5Final orders - reversal and reinstatement
we order that each party bears their own costs of the application dated 8th March 2019, and of this appeal.
p. 5Costs
the learned Judge did not apply his mind to crucial factors that provided suficient reason to review the orders made on13th July 2016, and misapprehended the facts giving rise to the appellants' application for review.
p. 5Sufficient reason for review
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts;
p. 4Grounds for interfering with discretionary decisions
it was also contradictory and in error to find that "upon the delivery of the ruling of res judicata on 13ᵗʰ July 2016, the Applicants neither applied for a review nor appealed the ruling", when the application that was the subject of that very ruling was seeking to review the ruling of 13th July 2016!
p. 5Internal contradiction in the ruling below

Issues in the judgment

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minor

The judgment does not state the appeal number assigned to this appeal in the Court of Appeal; only the case title and originating suits are identified.

minor

The judgment cites Jabane vs Olenja as (1968) KLR 661, the same year as the other East African Court of Appeal cases, which may be an internal citation error in the judgment.

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, "Hamisi & another (Suing as the administrators of the Estate of the Late Hamisi Shaban Otinga - Deceased) v Shiraho & another (Suing in their capacity as the administrators of the Estate of the Late Richard Shiraho) (Civil Appeal 60 of 2020) [2025] KECA 539 (KLR)", Case Analysis (2025). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/539/eng@2025-03-21

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