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ELCDismissedNot stated in judgment (suit against Nanyuki SRMCC Land Case No. 34 of 2007 objection)· [2015] KEELC 417 (KLR)

Jeremiah Ndung’u Kamutu v Benard Mwangi Kamutu [2015] KEELC 417 (KLR)

Environment and Land Court
26 May 2015
LWL N Waithaka
1,308 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 a land decision made by a tribunal without jurisdiction over registered land cannot block a fresh lawsuit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (L N Waithaka J) determines a preliminary objection by the defendant contending that the plaintiff's suit is res judicata Nanyuki SRMCC Land Case No. 34 of 2007, in which judgment and decree were entered pursuant to the award of the Ngarua Land Disputes Tribunal, under which the defendant had sought cancellation of the title to Plot No. Git/Muhotetu Block 2/1029. The defendant relied on Section 7 of the Civil Procedure Act, a decree dated 5th October 2007, a ruling of 17th October 2014 and Kibogy v Chemweno. The plaintiff responded that the tribunal award had been reversed on appeal to the Provincial Appeals Committee, that no final judgment on merit existed on the appeal, and that in any event the tribunal lacked jurisdiction over registered land. The court applied the five-part res judicata test from Benard Mugo Ndegwa v James Nderitu Githae, emphasising concurrence of jurisdiction and finality. Following Vincent Kipsongok Rotich v Orphah Jelagat Ngetich (Munyao J) and Mateo Githua Ngurukie v Attorney General (Ombayo J), it held that Land Disputes Tribunals had no jurisdiction over registered land, particularly title questions, so the former decision was rendered by an incompetent forum and was a nullity incapable of grounding res judicata. The preliminary objection was dismissed with costs in cause. The court noted a pending eviction suit, Nanyuki CMCCC No. 115 of 2012, brought in execution of the tribunal-based decree.

Key legal issues

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01

Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

The preliminary objection fails because the former judgment and decree derived from a Land Disputes Tribunal award made without jurisdiction over registered land; such a decision is not by a competent court and cannot ground res judicata

Reasoning

The court applied the five-limb test for res judicata from Benard Mugo Ndegwa v James Nderitu Githae, focusing on concurrence of jurisdiction and finality. Although a judgment and decree existed in Nanyuki SRMCC Land Case No. 34 of 2007, they merely adopted the Ngarua Land Disputes Tribunal award, the lower court's mandate under Section 7 of the Land Disputes Tribunals Act being only to enter judgment. Since the tribunal lacked jurisdiction to order cancellation of title to registered land, its decision was a nullity and could not sustain a res judicata plea.

p. 3

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
  • Land Disputes Tribunals lacked jurisdiction over registered land, especially matters touching on title to land

Court orders

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  1. 1.The notice of preliminary objection dated 17th February 2015 is dismissed
  2. 2.Costs in cause

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 7
  • Land Disputes Tribunals Act, No. 18 of 1990Section 7
  • Environment and Land Court ActNot specified (repeal of Land Disputes Tribunals Act)

Cases cited (6)

  • Benard Mugo Ndegwa -VS- James Nderitu Githae and 2 Others
    (2010) eKLR
  • Kibogy vs. Chemweno (Nairobi Civil Appeal No. 41 of 1980)
  • Vincent Kipsongok Rotich v. Orphah Jelagat Ngetich
    (2014) eKLR
  • Mateo Githua Ngurukie vs. Hon. Attorney General and 5 Others
    Nyeri High Court Civil Suit No. 206 of 1999
  • Wachira Wambugu Case
  • Julius Mburu Mbuthia Case
Jurisdiction invoked
Environment and Land Court Act; Section 7 of the Civil Procedure Act (res judicata)

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, "Jeremiah Ndung’u Kamutu v Benard Mwangi Kamutu [2015] KEELC 417 (KLR)", Case Analysis (2015). Not stated in judgment (suit against Nanyuki SRMCC Land Case No. 34 of 2007 objection). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/417/eng@2015-05-26

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