Njuguna & 6 others v Attorney General & 5 others (Civil Appeal 66, 67, 68, 69, 70, 71 & 72 of 2019 (Consolidated)) [2024] KECA 539 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2017 petition was barred by res judicata
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.
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.
Whether the appellants had a beneficial interest in the suit property
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.
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.
Whether the rights to access to information (Article 35) and fair administrative action (Article 47) were infringed
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.
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.
Costs
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.
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.
Legal principles established
#- 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
#- 1.The consolidated appeals (Nos. 66-72 of 2019) are dismissed with costs to the 4th and 5th respondents
- 2.The Attorney General, having not participated in the proceedings at the trial level, should meet his own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.