Benedict Kabugi Ndungu & another v Benedict Kabugi Ndungu & another [2016] KEELC 1289 (KLR)
The bottom line
#The High Court dismissed a landowner's attempt to block a constitutional petition, confirming judicial review cases don't bar later suits and anyone can sue under Article 258.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata because the cited prior matter was judicial review, a sui generis jurisdiction distinct from the civil jurisdiction invoked here
Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue in a former suit between the same parties was heard and finally decided. Relying on Welamondi, the court held that judicial review under Order 53 is neither civil nor criminal jurisdiction but sui generis, so a prior judicial review application cannot bar a constitutional petition.
Sub judice / pending appeal
The pendency of Civil Appeal No. 129 of 2013 does not bar the suit absent a stay order from the Court of Appeal
Even assuming the appeal concerns the same subject matter, no stay of these proceedings has been issued by the Court of Appeal. Without such an order it cannot be urged that the suit should not proceed; the court found the suit should proceed to hearing and determination.
Locus standi and the nature of the suit property
Locus standi is conferred by Article 258, and whether the property is private or public is the substantive issue in the suit, not a fit preliminary point
Article 258 allows any person to institute proceedings claiming constitutional contravention, including acting in the public interest. The characterization of the suit property as private or public is the very matter for trial; the 2nd Respondent cannot authoritatively assert private ownership before the suit is determined.
Legal principles established
#- Judicial review proceedings are sui generis, neither civil nor criminal, and a prior judicial review matter cannot found a plea of res judicata in a subsequent civil suit
- A preliminary objection must be a pure point of law and cannot rest on disputed facts requiring evidence
- Every person has the right to institute constitutional proceedings, including in the public interest, under Article 258
Court orders
#- 1.The 2nd Respondent's Preliminary Objection dated 16th December 2015 is dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Article 258 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benedict Kabugi Ndungu & another v Benedict Kabugi Ndungu & another [2016] KEELC 1289 (KLR)", Case Analysis (2016). Petition (subject matter); Preliminary Objection dated 16th December 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1289/eng@2016-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.