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ELCDismissedMeru ELC Petition (Preliminary Objection dated 29:09:14; succession cause No. 11 of 1983, HCCA No. 45 of 2002, Nkubu PMCC No. 36 of 1993, LDT No. 68 of 2000 cited as prior suits)· [2017] KEELC 417 (KLR)

Sevelina Kairigo M’miriti & another v Japhet Miriti M’mwengwa [2017] KEELC 417 (KLR)

Environment and Land Court
13 December 2017
675 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a land petition because constitutional claims cannot be used to reopen disputes already finally decided.

What this practically means

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Executive summary

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The Respondent filed a Preliminary Objection on 29 September 2014 contending that the Petition, which concerns land parcel LR. No. Abogeta/Lower Chure/210, was res judicata and an abuse of the court process because the issues had been adjudicated in High Court Succession Cause No. 11 of 1983, HCCA No. 45 of 2002, Nkubu PMCC No. 36 of 1993 and LDT No. 68 of 2000, and because the petition sought to challenge decisions of superior courts without filing an appeal. The Petitioners, daughters of the late Gituoki Mburu, conceded the dispute had been heard but argued their discrimination claim under Article 27 of the Constitution was a fundamental issue never previously raised, relying on Michael Gachoki Gicheru v Joseph Karobia Gicheru (Kerugya HC CC No. 783 of 2013). Framing the sole issue as whether the suit was res judicata, the court applied Section 7 of the Civil Procedure Act. Perusing the record of Succession Cause No. 11 of 1983, where the Petitioners had applied for annulment of a grant issued to the Respondent and asserted their right to own property, the court held this was the same issue as in the present suit. The court agreed with the Respondent that the petition sought to reopen litigation under the guise of constitutional issues, invoking the maxim that litigation must come to an end. The Preliminary Objection was found to have merit and the suit was dismissed with costs to the Respondent.

Key legal issues

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01

Whether a petition alleging discrimination under Article 27 of the Constitution can be filed over a matter already adjudicated in prior suits

Holding

The petition is res judicata; the question of ownership of the suit land was directly and substantially in issue and finally decided in the prior suits between the same parties

Reasoning

Section 7 of the Civil Procedure Act bars trying any suit or issue already directly and substantially in issue in a former suit between the same parties, litigating under the same title, in a court competent to try it, and heard and finally decided. The court perused the record of Succession Cause No. 11 of 1983, where the Petitioners sought annulment of a grant issued to the Respondent and asserted their right to own the suit property - the very same issue. Raising an Article 27 discrimination argument for the first time does not avoid res judicata; the petition was an attempt to reopen litigation under the guise of constitutional issues.

p. 2
02

Whether the Preliminary Objection dated 29:09:14 has merit

Holding

The Preliminary Objection has merit; the suit is dismissed with costs to the Respondent

Reasoning

Having found that the petition is res judicata and an abuse of court process, the court upheld the objection. The court noted that the history of prior suits (Succession Cause No. 11 of 1983, HCCA No. 45 of 2002, SRM CC No. 36 of 1993 and LDT No. 68 of 2000) confirmed the same issues had been adjudicated. The court also observed that the petition sought to challenge decisions of superior courts without filing an appeal as required by law.

p. 2

Legal principles established

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  • Litigation must come to an end; a party cannot reopen matters already heard and finally decided by invoking constitutional provisions not raised in the earlier suits (res judicata under Section 7 of the Civil Procedure Act)

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Constitution of KenyaArticle 27

Cases cited (1)

  • Michael Gachoki Gicheru vs. Joseph Karobia Gicheru Gicheru
    Kerugoya High Court Case No. 783 of 2013
Jurisdiction invoked
Article 27 of the Constitution invoked in the Petition; 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, "Sevelina Kairigo M’miriti & another v Japhet Miriti M’mwengwa [2017] KEELC 417 (KLR)", Case Analysis (2017). Meru ELC Petition (Preliminary Objection dated 29:09:14; succession cause No. 11 of 1983, HCCA No. 45 of 2002, Nkubu PMCC No. 36 of 1993, LDT No. 68 of 2000 cited as prior suits). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/417/eng@2017-12-13

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