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ELCDismissedEldoret High Court Civil Suit (filed 13 July 2009) - Application dated 10 October 2013· [2014] KEELC 414 (KLR)

Vincent Kipsongok Rotich v Orphah Jelagat Ngelechei [2014] KEELC 414 (KLR)

Environment and Land Court at Eldoret
23 April 2014
MSMunyao Sila
3,371 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land tribunal's decision on ownership cannot block a later court case, because the tribunal had no legal power to decide ownership.

What this practically means

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Executive summary

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This is a first-instance ruling of the Environment and Land Court at Eldoret (Munyao Sila J) on the defendant's application dated 10 October 2013 seeking to strike out the plaintiff's suit as res judicata. The suit, filed by plaint on 13 July 2009, concerns land parcel Nandi/Kamobo/4106; the plaintiff sought a declaration of ownership, eviction of the defendant from a 0.2-acre portion sold to her, permanent injunction and costs, alleging the sale agreement was void for want of Land Control Board consent. The defendant counterclaimed for specific performance and an injunction. She had earlier obtained an award of 0.2 acres from the Nandi District Land Disputes Tribunal (Tribunal Case No. 14 of 2007), adopted as a decree in Kapsabet LDT Case No. 45 of 2007 on 9 October 2007, with no appeal or judicial review preferred. The court held that res judicata under Section 7 of the Civil Procedure Act requires the former matter to have been determined by a competent court. Since the tribunal's mandate under Section 3 of the Land Disputes Tribunal Act covered boundaries, occupation and trespass - not ownership - its decision on ownership was by an incompetent forum and prima facie a nullity. Following Damaris Kondoro, Mwanaisha Kiriale Mohamed, Lloyd v American Motor Inns and Stephen Koikai, the court declined to declare the suit res judicata and dismissed the application with costs. Noting that the defendant obtained title to Nandi/Kamobo/4464 while a stay of execution was in force, the court barred her from encumbering that title and, under Section 68 of the Land Registration Act, issued an inhibition over the parcel pending hearing and determination of the suit.

Key legal issues

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01

Whether the suit is res judicata given the adopted tribunal award

Holding

No - the tribunal had no jurisdiction over ownership of land, so its decision was by an incompetent forum and is prima facie a nullity; res judicata cannot apply

Reasoning

Section 7 of the Civil Procedure Act requires the former suit to have been heard by a court competent to try the matter. The tribunal's jurisdiction under Section 3 of the Land Disputes Tribunal Act covered boundaries, occupation or working of land, and trespass - not ownership. Since the tribunal decided ownership of the 0.2 acres, it exceeded its mandate. The adopted award is therefore a nullity and cannot bar this suit, notwithstanding that no appeal or judicial review was pursued.

p. 5
02

Whether the defendant's newly acquired title (Nandi/Kamobo/4464) defeats the suit

Holding

No - the title originates from the suit land and was obtained while these proceedings and a stay of execution were in force; its acquisition is suspect and requires explanation

Reasoning

The court noted that an order of stay of proceedings in the Kapsabet matter had been granted by Azangalala J, yet the defendant nonetheless obtained title without prosecuting execution. The court found strong suspicion in the manner of acquisition and held that the explanation can only be given if the suit proceeds, justifying protective orders over the new title.

p. 5

Legal principles established

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  • Res judicata does not apply where the former suit was heard and determined by a court or tribunal lacking jurisdiction
  • A court faced with a plea of res judicata must first determine whether the court which heard the former suit had competent jurisdiction
  • A party aggrieved by a determination of an incompetent court should move to quash it or seek a declaration of nullity in the later suit to avoid parallel decrees
  • The Land Disputes Tribunal Act confined tribunals to boundary determination, claims to occupy or work land, and trespass, not ownership disputes

Court orders

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  1. 1.Application dated 10 October 2013 dismissed with costs
  2. 2.Defendant barred from selling, leasing, or in any other way encumbering the title Nandi/Kamobo/4464
  3. 3.Order of inhibition inhibiting registration of any entry in the title of land parcel Nandi/Kamobo/4464 pending hearing and final determination of this suit, pursuant to Section 68 of the Land Registration Act

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 7 (Res judicata) and Section 8 (Bar to further suit)
  • Land Disputes Tribunal Act, Act No. 18 of 1990 (now repealed)Section 3 (jurisdiction of tribunals) and Section 8 (appeals to Provincial Appeals Tribunal)
  • Land Registration Act, Act No. 3 of 2012Section 68

Cases cited (4)

  • Damaris Kondoro vs Gachanja Gitere & Another
    Nakuru HCCC No. 127 of 2004, (2005) eKLR
  • Mwanaisha Kiriale Mohamed & Another v Alfred Wafua Okuku & 2 Others
    Mombasa HCCC No. 129 of 2010, (2014) eKLR
  • Lloyd vs American Motor Inns, Inc
    343 S.ED.2d 68 (1986)
  • Stephen Ntokoiwuan Koikai vs Raphael Lekishon Koikai
    Nakuru HCCC No. 111 of 2007 (2007) eKLR
Jurisdiction invoked
Original civil jurisdiction; orders issued under Section 68 of the Land Registration Act, Act No. 3 of 2012

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, "Vincent Kipsongok Rotich v Orphah Jelagat Ngelechei [2014] KEELC 414 (KLR)", Case Analysis (2014). Eldoret High Court Civil Suit (filed 13 July 2009) - Application dated 10 October 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/414/eng@2014-04-23

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