JACKTON ONYANGO SEGE VS JOHN OWENO OCHOLA

(Being an appeal from the judgement of the Chief Magistrate Hon. Charles Mutai (CM) delivered on the 12th April, 2024 in Homabay ELC No. E008 of 2023)
INTRODUCTION
1. This is an appeal arising from the judgment of Honourable Charles Mutai, Chief Magistrate delivered on 12th April, 2024 in Homabay ELC No. E008 of 2023.
2. The Appellant filed a Memorandum of Appeal dated 18th April, 2024 appealing against the said judgment on the following grounds: -
1. The Learned Trial Magistrate erred in Law by delivering a judgement in favour of the respondent in respect to a suit property being land parcel No. GEM/KOTIENO/KAWUOR/1366 that was not in existent at the time of the said judgment.
2. The Learned Trial magistrate erred in Law by delivering judgement that was erroneous on the face of record.
3. The Learned Trial Magistrate erred in Law by delivering judgement that failed to consider the fact that the respondent had sub divided the entire suit property which he had sold to 3” parties that were not parties to this suit making the relies sought thereof irrelevant and misplaced.
4.   The Learned Trial Magistrate erred in Law by delivering judgement in favour of the plaintiff which judgement in its Legal concept can never be executed against the Appellant.
5. The Learned Trial Magistrate erred in Law by delivering a judgement that took note of the fact that the Appellant had no other place to move to but failed to provide for an alternative remedy for his state despite the Court’s inherent jurisdiction.
6. The Learned Trial Magistrate erred in Law by delivering judgement that failed to consider the Appellants Counter claim although the respondent never responded to the same as per the pleadings in Court
7. The Learned Trial Magistrate erred in Law by delivering judgement that favored the respondent thereby giving him both land and purchase price without any consideration of the fact that the Appellant has lived on the said. land in dispute for over 12yrs and that he had sold virtually the whole land.
3. The Appellant seeks orders for setting aside the trial magistrate’s decision and a refund of the purchase price.
BRIEF FACTS
4. The Respondent had filed a suit against the Appellant vide a plaint dated 17th February, 2023. He sought for an order of eviction and a permanent injunction against the Appellant.
5. The Appellant in response filed his statement of defence and counter claim dated 21st March, 2023. He sought for refund of the purchase price and damages for breach of contract.
6. The suit was heard and the trial magistrate in his judgment dated 12th April, 2024 found that the Respondent had proved his case on a balance of probabilities thereby allowing the Respondent’s case.
7. The Appellant being dissatisfied with the judgment filed the present appeal which was canvassed by way of written submissions.
Submissions
8. Counsel for the Appellant filed his submissions dated 12th March, 2025 where she submits that at the time of the court’s judgment, the suit property GEM/KOWUOR/KOTIENO/1366 was not in existence.
9. She submits that the suit property had been subdivided and distributed to various people to whom the Respondent sold land while the case was still ongoing. She added that the title registered in the Respondent’s name had been closed on 17th October, 2023.
10. She submits that all the other sub divided parcels were registered in the names of other persons not parties to the suit or the decree.
11. She further submits that the judgment/decree had been issued in respect of a non-existent property thus making the judgment a nullity and or erroneous on the face of record.
12. She also submits that at the time the judgment was delivered, the court had not made any orders to address the issue of subdivision of the suit property. Counsel argues that since the Respondent sold land that was in his deceased father’s name, the same was not a license to mistreat the Appellant. He urged the court to intervene and allow the appeal as prayed.
Analysis and Determination
13. Upon consideration of the pleadings, the law and submissions, the following issues are for determination:
a) Whether the appeal is merited.
b) Who should bear the cost of the appeal.
14. Being a first appeal, the court relies on a number of principles as set out in Selle and another V Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”
15. In the case of Supermarine Handling Services Ltd V Kenya Revenue Authority [2010] KECA 373 (KLR) the court held as follows:
“…Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”.
16. The appellant raised the ground that parcel No. GEM/KOWUOR/KOREMO/1366 did not exist, and the trial Court pronounced itself on a parcel of land that did not exist. Did that comport with the pleadings and evidence at the trial Court?
17. It should not be lost of the legal point that parties are bound by their pleadings. This a  settled legal principle which parties cannot run away from. In Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Mrima J. stated as follows:
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must align with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:
-“…..it is now(settled) principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
18. Similarly, in the Tanzanian case of Salim Said Mtomekela Versus Mohamed Abdallah Mohamed, Dar-Es-Salaam Court of Appeal Civil Appeal No. 149 Of 2019 (Mugasha. J.A. Kihwelq. J.A. Rumanyika. J.A P) their Lordships held:
“Pleading in law means, written presentation by a litigant in a law suit setting forth the facts upon which he/she claims legal relief or challenges the claims of his opponent. It includes claims and counterclaim but not the evidence by which the litigant intends to prove his case … That said, since the pleading is a basis upon which the claim is found, it is settled law that, parties are bound by their own pleadings and that any evidence produced by any of the parties which is not supportive or is at variance with what is stated in the pleadings must be ignored. See Barclays Bank (T) Vs Jacob Muro, Civil Appeal No. 357 of 2018 [where] the Court cited with approval a passage in an article by Sir Jack I.H. Jacob bearing the title,"The Present Importance of Pleadings", first published in Current Legal Problems (1960) at p. 174 whereby the author among other things said: "As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he as to meet and cannot be taken by surprise at the trial. The court itself is as well bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings..."
19. This Court has carefully examined the parties’ pleadings at the trial stage. The Defendant therein (now appellant) raised a Counterclaim in which at paragraph 8 he pleaded that the Plaintiff sold to him part of land parcel No Gem/Kotieno/Kawuor/610 originally in the name of Ochola Nyarasi which upon subdivision became parcels Nos. Gem/Kotieno/Kawuor/1366, 1367 and 1368 after the plaintiff carrying out succession proceedings. Further, at paragraphs 13 and 14, that parcel No. Gem/Kotieno/Kawuor/1366 was at the time of suit in the name of the Plaintiff. He then pleaded that the Plaintiff could not reclaim land sold to the defendant many years before on the basis that the Plaintiff did not have legal authority to sell. The Defendant prayed for the relief that he be refunded at the current market price the money he paid and damages for breach of contract and costs of the Counterclaim.
20. This was a clear averment in the Defendant’s pleadings that the suit parcel of land was existing. Otherwise, it could not make sense for him to plead that the Plaintiff refunds him for the sale of part of the land at the then market price, without him amending the pleadings to state that the land never existed or had been subdivided and sold to other people.
21. It is not in dispute that the Appellant had sued the Respondent in Homabay Civil ELC No. 84 of 2018 for a claim of transfer of 2 acres being the purchased portion from GEM/KOWUOR/KOREMO/1366. The trial court then Tom Olando (PM) vide its judgment on 17th March, 2021 found in the Appellant’s favour. However, the Respondent successfully appealed the said decision vide the judgment by G. M. Ongondo J. in Homabay ELC Appeal No. E043 of 2021 delivered on 31st January, 2023 where the court ordered that the suit property revert back to the Respondent.
22. In essence, by the said judgment in the previous suit and appeal, the issue of ownership of the suit parcel of land number Gem/Kotieno/Kawuors/1366 was settled on merits that it was to be the Respondent’s.
23. Following that, the Respondent filed another suit in the lower court being ELC No. E008 OF 2023. In the said suit, the Respondent sought for eviction orders against the Appellant from the suit property GEM/KOWUOR/KOREMO/1366. The court allowed the Respondent’s case prompting the Appellant file the present appeal. It is clear that the issues in the previous appeal, No. E43 of 2021 were between the same parties litigating under the same title over the same parcel of land or subject.
24. Section 7 of the Civil Procedure Act states as follows:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
25. In the case of Shahbal v Independent Electoral and Boundaries Commission & 3 others (Petition 21 of 2014) [2014] KESC 1 (KLR) the court held that:
“To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.”
26. In the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR the court held as follows:
“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disinjunctive but conjunctive terms;
a) The suit or issue was directly and substantially in issue in the former suit.
b) That former suit was between the same parties or parties under whom they or any of them claim.
c) Those parties were litigating under the same title.
d) The issue was heard and finally determined in the former suit.
e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
27. This Court has is obligated to consider whether the issues it is called upon to adjudicate in the instant appeal have been considered before by the same Court on merits and then decide whether it is being asked to repeat them hence abusing its process.
28. I have keenly perused the court record and it is not in dispute that in the two lower court matters, ELC 84 of 2018 and ELC E008 of 2023, the parties were the same, both parties were litigating under the same title being GEM/KOWUOR/KOREMO/1366 and both matters were heard and determined, in favour of the present Respondent.
29. It is also not in dispute that the Respondent had appealed against the trial magistrate’s decision in ELC No. ELC 84 OF 2018 and a decision rendered by G.M.A Ong’ondo J on 31st January, 2023. The said appeal was also between same parties and same subject matter being the suit property herein.
30. It is this court’s view that in all the matters the parties and the subject matter are the same and they were fully adjudicated upon. While the instant appeal arises from a prayer for the Appellant’s eviction, a challenge to the determination of the trial Court in favour of the Respondent would require this Court to once again determine who the rightful owner of the parcel no. 1366 was or is and whether the party who is not the owner should be evicted or not. The issue of eviction cannot be divested from the issue of ownership of the suit land. This is an issue settled by this Court in the previous appeal. In any event that is why the Appellant, in his Counterclaim in the trial court prayed for the refund of his money at the then market rates.
31. The upshot of the foregoing is that the instant appeal is res judicata and the same is dismissed with costs to the Respondent.
32. It is so ordered.
Judgment dated, signed and delivered virtually via the Teams Platform this 30th  day of July 2025.
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Ms. H. Mimba Advocate for the Appellant
Mr. Robert Ochieng Advocate for the Respondent