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ELCOtherNot stated in the ruling (Plaintiff's suit filed 3rd January 2014)· [2014] KEELC 66 (KLR)

Silas Njeru Njiru & 2 others v Mugo Mukere [2014] KEELC 66 (KLR)

Environment and Land Court (sitting at Kerugoya)
14 November 2014
BOB.N. Olao
1,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that decisions made by tribunals without jurisdiction cannot be reused to block a fresh land ownership lawsuit.

What this practically means

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Executive summary

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This ruling by B.N. Olao J determines a Preliminary Objection raised by the defendant, Mugo Mukere, on the ground that the plaintiffs' suit seeking a declaration that land parcel MBETI/GACHOKA/1555 is held in trust for them and transfer of the title into their names is res judicata. The defendant relied on prior proceedings: an award by the Gachoka Division Land Disputes Tribunal in 1994 in the plaintiffs' favour, confirmed by the Siakago Court and upheld by the Eastern Province Land Disputes Appeals Committee in 2007; Embu High Court Judicial Review No. 40 of 2008; and Kerugoya ELC No. 607 of 2013. Applying Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, 2011, the court held that res judicata can only be founded on a decision of a competent court. The Tribunal had no jurisdiction over title to registered land, as established in the Amunavi case, so its award and the confirming decisions were nullities. The judicial review application only quashed those decisions for want of jurisdiction without determining ownership, and in the Kerugoya case the plaintiffs were not parties and only removal of restrictions was ordered. None of the prior proceedings finally determined the ownership dispute. The Preliminary Objection was dismissed with costs and the suit transferred to the Environment and Land Court at Embu for mention on 24th November 2014.

Key legal issues

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01

Whether res judicata applies to prior decisions of courts and tribunals lacking jurisdiction

Holding

The Gachoka Land Disputes Tribunal had no jurisdiction to determine title to registered land; its award, and the decisions confirming it, were nullities incapable of grounding res judicata

Reasoning

Section 7 of the Civil Procedure Act requires that the former suit have been heard and finally decided by a competent court. The Tribunal's award on title to registered land exceeded its statutory jurisdiction as confirmed in the Amunavi case, so the Tribunal, the Appeals Committee and the Siakago Court acted without jurisdiction and their decisions had no legal effect.

p. 2
02

Whether the High Court judicial review and Kerugoya ELC proceedings finally determined the ownership dispute

Holding

Neither decided the merits of ownership; the judicial review was confined to jurisdiction and the Kerugoya case involved neither party and only ordered removal of restrictions

Reasoning

The Embu High Court quashed the tribunal decisions solely for want of jurisdiction without determining ownership of MBETI/GACHOKA/1555. The Kerugoya ELC No. 607 of 2013 application was brought by the defendant against the Land Registrar and the Attorney General; the plaintiffs were not parties and no ownership dispute was resolved, so neither decision can sustain res judicata.

p. 3

Legal principles established

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  • Res judicata can only be invoked where the former suit was heard and finally determined by a competent court
  • A decision rendered by a court or tribunal without jurisdiction is a nullity and cannot found a plea of res judicata

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs
  2. 2.The case is transferred to the Environment and Land Court at Embu
  3. 3.The case to be mentioned on 24th November 2014 at Embu for further orders

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court ActSection 28
  • Land Disputes Tribunal ActSection 3(1)
  • Registered Land ActSection 159

Cases cited (1)

  • JOTHAM AMUNAVI VS THE CHAIRMAN SABATIA DIVISIONAL LAND DISPUTES TRIBUNAL & ANOTHER
    Civil Appeal No. 256 of 2002
Jurisdiction invoked
Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, 2011

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, "Silas Njeru Njiru & 2 others v Mugo Mukere [2014] KEELC 66 (KLR)", Case Analysis (2014). Not stated in the ruling (Plaintiff's suit filed 3rd January 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/66/eng@2014-11-14

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