Wilson Amuge Lagat v Kiprono Kapteberewo & 4 others [2018] eKLR

Key Facts

Issues

• The court considered whether the plaintiff's current claim over the same land parcel is barred by res judicata, given that he previously lost the dispute in the High Court (Nakuru HCCC No. 164 of 1990) and Court of Appeal (Civil Appeal No. 96 of 1995). The defendants argued the matter was already adjudicated and the plaintiff cannot re-litigate it.
• The court addressed whether the applicant demonstrated discovery of new and important evidence (e.g., non-subdivision of land, deaths of parties) not previously available, or a mistake/error apparent on the record, to warrant reviewing the 2015 dismissal order under Order 45 Rule 1 of the Civil Procedure Rules. The applicant claimed the respondents withheld material facts, including the death of Kapteberewo Koibos and the non-subdivision of the land parcel, which he argues invalidates the prior ruling.

Holdings

• The court dismissed the plaintiff's application for review of the March 2015 ruling, finding no new or important evidence was presented. The applicant's claims about the land parcel not being subdivided and the death of Kapteberewo Koibos were deemed known or disclosed during prior proceedings. The court concluded the application was unmerited and upheld the original dismissal of the plaintiff's suit with costs.
• The court upheld the prior finding that the applicant's suit was res judicata, having already been decided in favor of the defendants in 1990 and 1995. The applicant's argument about time-barred judgments under the Limitation of Actions Act was rejected as the issue remained unenforceable due to prior judgments.
• The court determined that the applicant failed to demonstrate a mistake or error apparent on the record. The evidence regarding the land's status and deceased parties had been previously considered or disclosed. The judge emphasized the applicant's obligation to pursue an appeal rather than a review, which was not done.

Remedies

Legal Principles

• The court applied the principle of res judicata, determining that the applicant's suit was barred as the issue of land ownership had already been adjudicated in prior proceedings (Nakuru HCCC No. 164 of 1990 and Court of Appeal Civil Appeal No. 96 of 1995).
• The court evaluated the grounds for review under Order 45 Rule 1 of the Civil Procedure Rules, requiring demonstration of new evidence, a mistake apparent on the record, or other sufficient reasons. The application was dismissed due to lack of new matter and non-compliance with procedural requirements.

Precedent Name

• Yatich Chepkonga & 13 Others v Baringo Technical College
• Grace Akinyi v Gladys Kemunto Obiri
• National Bank of Kenya Ltd v Njau
• Wilson Amuge Lagat v Kapteberewo Koibos

Cited Statute

• Civil Procedure Rules
• Limitation of Actions Act

Judge Name

Passage Text

• 16. It has further been argued that there was nondisclosure of the fact that Kapteberewo Koibos had died when the application was being argued. Nothing arises out of this because I believe that the applicant himself was aware of his death, given that he did not sue him in these proceedings. Indeed, in his plaint, the applicant referred to Kapteberewo Koibos using the past tense 'was' meaning that he was aware of his non-existence.
• 14. It will be observed for a party to bring himself under the umbrella of an application for review, he needs to demonstrate discovery of new and important matter or evidence which could not have been within his knowledge or could not be procured by him, despite exercise of due diligence when the order was made; or he may demonstrate a mistake or error apparent on the face of the record; or demonstrate other sufficient reason.
• 19. I see no merit in this application and it is hereby dismissed with costs. The effect is that the plaintiff's suit remains dismissed with costs.