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Court of AppealDismissedCivil Appeal 45 of 2018· [2022] KECA 1422 (KLR)

Ogaga (Suing as the Legal Representative of the Estate of Turufena Kemunto Ogaga-Deceased) v Ogaga & 3 others

Court of Appeal
16 December 2022
PKP. O. KiageSKS. ole KantaiMNMumbi Ngugi
4,331 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land disputes under the Land Adjudication Act must go through the statutory appeal process first, not straight to court.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Mumbi Ngugi JA writing the leading judgment; Kiage and Kantai JJA concurring) dismissed an appeal against a ruling of the Environment and Land Court at Migori (Ong'ondo J) which had struck out the appellant's suit with costs after upholding the Attorney General's preliminary objection on grounds of lack of jurisdiction, res judicata, limitation and disclosure of no reasonable cause of action. The appellant, sister of the 1st and 2nd respondents, had sued seeking cancellation of the respondents' registration as co-owners of Lambwe West/Lambwe West 'B'/855, alleging fraudulent insertion of their names in the adjudication record. The Court affirmed the ruling below. It held that the ownership question had been determined in objection proceedings before the Adjudication Officer (objection No 967 by the 3rd respondent), that the appellant neither objected nor appealed to the Minister under section 29 of the Land Adjudication Act within 60 days, nor sought judicial review, and that her suit was therefore res judicata. It further held that the appellant was obliged to exhaust the dispute-resolution mechanism prescribed by the Land Adjudication Act before resorting to the courts, so the ELC properly upheld the jurisdictional objection. Although the appellant was correct that time in a fraud claim runs from discovery (per Kenya Ports Authority v Timberland), that point did not alter the outcome. The appeal was dismissed with no order as to costs, the 1st and 2nd respondents having in essence supported the appellant's case and the 3rd respondent not participating.

Key legal issues

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01

Res judicata

Holding

The suit was res judicata because the ownership issue was determined in objection proceedings before the Adjudication Officer, and the appellant neither objected nor appealed to the Minister

Reasoning

The Adjudication Record showed objection No 967 by the 3rd respondent was heard and determined, resulting in registration of the 1st-3rd respondents. The appellant did not deny the objection proceedings, did not appeal to the Minister under section 29, and did not seek judicial review. The elements of section 7 of the Civil Procedure Act were satisfied, so relitigating ownership by plaint thirty years later was barred.

p. 6
02

Exhaustion of alternative remedies / jurisdiction

Holding

The ELC properly upheld the preliminary objection on jurisdiction because the appellant was obliged to exhaust the dispute-resolution procedure in the Land Adjudication Act

Reasoning

Sections 26 to 29 of the Land Adjudication Act set out the procedure for resolving disputes, including an appeal to the Minister within 60 days. The appellant pursued neither that appeal nor judicial review. Where a sufficient and adequate forum exists, a party must pursue it rather than invoke the court process, as the Court held in Hulbhai Gedi Abdille.

p. 7
03

Limitation and fraud

Holding

Although time in a fraud claim runs from discovery, the limitation argument did not alter the outcome given the finding of res judicata

Reasoning

The appellant correctly cited the principle that time does not run until discovery of fraud (Kenya Ports Authority v Timberland). However, the Adjudication Record dated November 12, 1986 showed the respondents were entered as owners then, and the claim was barred by res judicata regardless, so the limitation point was immaterial to the final outcome.

p. 7

Legal principles established

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  • A party aggrieved by a decision of an Adjudication Officer under the Land Adjudication Act must appeal to the Minister within 60 days under section 29 or seek judicial review, and may not bypass that procedure by an ordinary suit
  • Where a prescribed procedure exists in law, a party aggrieved must follow and exhaust it before resorting to the courts
  • All elements of res judicata under section 7 of the Civil Procedure Act must be satisfied conjunctively

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Adjudication Actsection 26
  • Land Adjudication Actsections 26 to 29
  • Land Adjudication Actsection 29(1)
  • Environment and Land Court Actsection 13
  • Environment and Land Court Actsection 13(1)
  • Civil Procedure Actsection 7
  • Limitation of Actions Actsection 4(2)

Cases cited (5)

  • Fredrick Tureisa Lekesike v Iman Dahir & 3 others
    (2019) eKLR

    That at the time of filing suit and discovery of fraud, the land was already registered and not under adjudication

  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR

    Rationale behind res judicata - end to litigation, protection from repetitive litigation, stability of judgments

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR

    Elements of res judicata under section 7 must be satisfied conjunctively

  • Kenya Ports Authority Vs Timberland(K) Ltd
    (2017) eKLR

    Time does not begin to run for limitation until the plaintiff discovers the fraud

  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR

    Doctrine of exhaustion of remedies - a party ought to pursue a sufficient and adequate alternative forum

On appeal from
Environment and Land Court
ELC Case Number 290 of 2017 (Formerly Kisii ELC Case No. 96 of 2016)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the ruling of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ogaga (Suing as the Legal Representative of the Estate of Turufena Kemunto Ogaga-Deceased) v Ogaga & 3 others", Case Analysis (2022). Civil Appeal 45 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1422/eng@2022-12-16

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