Samuel Ngigi Wahogo & 4 others v Attorney General & 3 others [2017] KEELC 137 (KLR)
The bottom line
#A Kenyan court refused to dismiss a land rights petition as res judicata but ordered the petitioners to choose between two overlapping cases and abandon one.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal, Appeal Committee and LDT Case No. 29 of 2008 proceedings render the petition res judicata
No - the petitioners were not parties in those cases, nor privies of the defendants litigating under the same title
Although the petitioners' parcels were litigated, they were not enjoined; those sued were neither attorneys nor agents of the petitioners, so the petitioners cannot be deemed to have litigated through them. Same-parties and same-title requirements of res judicata are therefore not met.
Whether Misc. Application No. 44 of 2011 and JR Case No. 69 of 2011 render the petition res judicata
No - No. 44 of 2011 was never heard and determined; No. 69 of 2011 decided only the claim for prohibition, not certiorari
Misc. Application No. 44 of 2011 lapsed without a substantive motion for certiorari despite leave. JR No. 69 of 2011 was heard and determined, but the issue decided was entitlement to prohibition; certiorari was not before it, so that decision does not preclude a later claim for certiorari.
Whether Nakuru ELC No. 470 of 2013 makes the petition res judicata or otherwise untenable
Not res judicata because the suit is still pending, but the concurrent pursuit of two suits with substantially similar issues is an abuse of process requiring an election
The civil suit seeks setting aside of the Tribunal award, essentially the same effect as the certiorari sought in the petition, on similar jurisdiction and hearing grounds. Both suits are pending; allowing the petitioner to shop between them would be playing lottery with the court process. The petitioners must elect one case and withdraw the other.
Legal principles established
#- Res judicata is a principle of general application and applies even to constitutional petitions for enforcement of fundamental rights and freedoms
- For res judicata the prior matter must have been heard and finally decided between the same parties or parties litigating under the same title
- A litigant cannot relitigate or concurrently pursue issues pending before a competent court by disguising the claim as a constitutional petition; concurrent suits raising similar issues amount to an abuse of process and the litigant must elect
Court orders
#- 1.The application dated 22 March 2017 is not allowed as framed
- 2.The petitioners are ordered to make an election to proceed with either Nakuru ELC No. 470 of 2013 or this petition, and to withdraw the other
- 3.No order as to costs
- Jurisdiction invoked
- Not expressly invoked; petition brought for enforcement of rights to be heard and to property under the Constitution (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices and Procedure Rules, 2013 referenced); application under Sections 3, 3A and 7 of the Civil Procedure Act, CAP 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Ngigi Wahogo & 4 others v Attorney General & 3 others [2017] KEELC 137 (KLR)", Case Analysis (2017). Petition (filed 7 November 2016), Environment & Land Court at Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/137/eng@2017-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.