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Court of AppealDismissedConsolidated Civil Appeals Nos. 66, 67, 68, 69, 70, 71 and 72 of 2019· [2024] KECA 539 (KLR)

Njuguna & 6 others v Attorney General & 5 others (Civil Appeal 66, 67, 68, 69, 70, 71 & 72 of 2019 (Consolidated)) [2024] KECA 539 (KLR)

Court of Appeal of Kenya
9 May 2024
5,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal dismissed seven siblings' land dispute, ruling you cannot relitigate a case already decided by simply changing the parties.

What this practically means

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Executive summary

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Seven siblings of a deceased polygamist (appellants) consolidated seven appeals against the dismissal by Oundo, J of the Environment and Land Court (Nyahururu) of their constitutional petition in which, together with the 6th respondent, they alleged infringement of their rights to property, fair administrative action and access to information arising from the subdivision and transfer of Nyandarua/Passenga/46 to the 4th and 5th respondents. The Court of Appeal, per Ochieng, Gachoka and Korir, JJA, framed four issues: res judicata, beneficial interest, infringement of rights, and costs. On res judicata, the Court held the 2017 petition was barred by section 7 of the Civil Procedure Act in light of the 6th respondent's earlier Nakuru Constitutional Petition No. 6 of 2011: the sixth explanation deems persons interested in a right litigated bona fide by another to claim under that litigant, so the parties, subject matter and issues were identical, and adding or subtracting parties cannot defeat the defence. On the merits, the Court found the deceased had, during his lifetime, registered the suit property jointly with the 4th respondent, subdivided it, transferred the subdivisions, and allocated each wife her own parcel; the property therefore formed no part of the estate and the appellants had no right or interest in it, defeating the Article 40 claim. The Article 35 claim failed because the information sought was already in the 6th respondent's possession, and the Article 47 claim failed because the Land Registrar acted within his mandate. The Court affirmed the judgment below, dismissed the consolidated appeals with costs to the 4th and 5th respondents, and ordered the Attorney General, who did not participate at trial, to meet his own costs.

Key legal issues

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01

Whether the 2017 petition was barred by res judicata

Holding

Yes. The parties, subject matter and issues in the 2017 petition were identical to those in Nakuru Constitutional Petition No. 6 of 2011; the 6th respondent was a party in both petitions, and the appellants, claiming the same interest, were deemed to claim under him.

Reasoning

The court applied section 7 of the Civil Procedure Act and its sixth explanation, deeming all persons interested in a right litigated bona fide by another to claim under that litigant. Applying the Supreme Court's four-element test in John Florence Maritime, the court found identical parties, subject matter (subdivision of Nyandarua/Passenga/46) and issues, and held that adding or subtracting parties cannot defeat the defence.

p. 7
02

Whether the appellants had a beneficial interest in the suit property

Holding

No. The suit property was not part of the deceased's estate; the deceased had allocated each wife her respective portion during his lifetime, so the appellants had no right or interest in the suit property and their Article 40 claim failed.

Reasoning

The court found that the deceased, while alive, registered the suit property jointly with the 4th respondent, subdivided it and transferred the subdivisions to the 4th and 5th respondents, and allocated the other two wives their own parcels (Nyandarua/Passenga/41 and 54). The property was thus not subject to distribution as part of the estate, invalidating the property-rights claim.

p. 9
03

Whether the rights to access to information (Article 35) and fair administrative action (Article 47) were infringed

Holding

No. The information the appellants sought was already within their knowledge, and the Land Registrar acted within his mandate in removing the caution, with the 6th respondent's appeal against that decision having been dismissed.

Reasoning

On Article 35, the court noted the 6th respondent had obtained the green card and proceedings before the Chief Lands Registrar, so the requested explanation was already in his possession. On Article 47, the procedure adopted by the Land Registrar in removing the caution was within the borders of his mandate, and no arbitrary action or omission was shown.

p. 9
04

Costs

Holding

Costs follow the event. The appellants, having lost, must pay the costs of the 4th and 5th respondents; the Attorney General, having not participated at trial, was ordered to meet his own costs of the appeal.

Reasoning

The court exercised its discretion on costs in accordance with the ordinary principle that costs follow the event, finding no peculiar circumstances warranting departure, given the appellants had dragged the 4th and 5th respondents through unnecessary litigation.

p. 9

Legal principles established

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  • Res judicata applies to constitutional petitions, and the addition or subtraction of parties to a subsequent suit does not defeat a plea of res judicata so long as the subject matter is the same and was determined with finality by a competent court
  • Where persons litigate bona fide in respect of a right claimed in common for themselves and others, all persons interested in that right are deemed to claim under them for purposes of section 7 of the Civil Procedure Act
  • A first appellate court must independently re-appraise the evidence and draw its own inferences and conclusions

Court orders

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  1. 1.The consolidated appeals (Nos. 66-72 of 2019) are dismissed with costs to the 4th and 5th respondents
  2. 2.The Attorney General, having not participated in the proceedings at the trial level, should meet his own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 35(1)(b)
  • Constitution of Kenya, 2010Article 22(1)(b)
  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Articles 22, 48 and 262 (raised in the 2011 petition)
  • Civil Procedure Act, Cap. 21Section 7 (including Explanations 4 and 6)
  • Land Registration ActSections 91(1) & (4) and 60
  • Access to Information ActSection 8
  • Court of Appeal Rules, 2022Rule 31(1)(a)

Cases cited (12)

  • Isack M’inanga v. Isaaya Theuri’ lintari & Another
    [2018] eKLR
  • In re Estate of Peter Gathogo (Deceased)
    [2020] eKLR
  • Oganga & Another v. Orangi & 3 others
    [2023] KEELC 16348 (KLR)
  • Independent Electoral and Boundaries Commission v. Maina Kiai & 5 others
    [2017] eKLR
  • John Florence Maritime Services Limited & Another v. Cabinet Secretary for Transport and Infrastructure & 3 others
    [2021] eKLR
  • Peter Mburu Echaria v. Priscilla Njeri Echaria
    [2007] eKLR
  • Abok James Odera T/A A.J Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Kenya Commercial Bank Limited v. Muiri Coffee Estate Limited & Another
    [2016] eKLR
  • John Florence Maritime Services Limited & another v. Cabinet Secretary Transport & Infrastructure & 3 others
    [2021] KESC 39 (KLR)
  • ET v Attorney-General & another
    (2012) eKLR
  • Omondi v National Bank of Kenya Limited and others
    (2001) EA 177
  • Njangu v Wambugu and another
    Nairobi HCCC No 2340 of 1991 (unreported)
On appeal from
Environment and Land Court, Nyahururu
Constitutional Petition No. 2 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022

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, "Njuguna & 6 others v Attorney General & 5 others (Civil Appeal 66, 67, 68, 69, 70, 71 & 72 of 2019 (Consolidated)) [2024] KECA 539 (KLR)", Case Analysis (2024). Consolidated Civil Appeals Nos. 66, 67, 68, 69, 70, 71 and 72 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/539/eng@2024-05-09

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