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ELCDismissedNot stated in the judgment· [2017] KEELC 1533 (KLR)

John Seguton Chelimo v Land Registrar Kabarnet & 2 others [2017] KEELC 1533 (KLR)

Environment and Land Court
17 August 2017
5,106 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land petition because the same ownership dispute had already been decided in an earlier case.

What this practically means

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Executive summary

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The petitioner, John Seguton Chelimo, petitioned against the Land Registrar Kabarnet, the Commissioner of Lands and the Attorney General, with the County Government of Baringo and Musa Kipkurere Kibusia as interested parties, claiming that he had been allotted L.R. No. Kabarnet/Municipality/174 under a letter of allotment dated 13th November 1996 issued jointly with Pius C. Ayabei, that he had paid all dues, and that the subsequent registration of the 2nd Interested Party as proprietor and issuance of a certificate of lease was illegal, arbitrary and in violation of Articles 27, 40 and 47 of the Constitution. He sought declarations, certiorari to quash the registration, an injunction and damages. The 2nd Interested Party opposed, contending that the petition was res judicata, having been determined in Nakuru CMCC No. 2860 of 1998 in his favour, with the petitioner's appeal dismissed for want of prosecution in 2009. The court framed three issues: res judicata, propriety of the allotment letters, and violation of constitutional rights. Applying section 7 of the Civil Procedure Act, the court held the same ownership issue had been directly and substantially determined between the same parties by a court of competent jurisdiction; non-joinder of the respondents could not defeat res judicata. While acknowledging irregularities in the 2nd Interested Party's allocation and the petitioner's legitimate expectation, the court held the petitioner should have pursued his appeal rather than re-litigate by petition. The petition was dismissed with costs as res judicata and an abuse of court process.

Key legal issues

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01

Whether the petition is res judicata in light of Nakuru CMCC No. 2860 of 1998

Holding

The petition is res judicata. The same issue - the legality of the title obtained by the 2nd Interested Party - was directly and substantially in issue in the former suit between the same parties and was heard and determined by a court of competent jurisdiction; the petitioner's appeal therefrom was dismissed for want of prosecution.

Reasoning

Section 7 of the Civil Procedure Act bars trying a suit or issue directly and substantially in issue in a former suit between the same parties litigating under the same title before a competent court. The parties and issues in the former suit and the petition were the same; the respondents not joined in the former suit ought to have been enjoined by the petitioner, so their absence cannot defeat res judicata. The lower court determined the ownership issue and issued eviction and permanent injunction orders.

p. 7
02

Whether the allotment letters were properly issued

Holding

Though irregularities were apparent - the 1st Interested Party's records showed no allocation to the 2nd Interested Party and the application was approved without consulting the Municipal Council of Kabarnet - the petitioner should have raised these issues in the former suit.

Reasoning

The court traced the petitioner's 1994 application, the Council committee's recommendation, the PDP process and the allotment letter of 13th November 1996, and noted the 2nd Interested Party's allocation was made directly through the Minister for Lands without Council approval and without an annexed allotment letter. However, having found the petition res judicata, the court held the petitioner was barred from litigating these issues afresh and should have pursued his appeal.

p. 7
03

Whether the petitioner's constitutional rights under Articles 27, 40 and 47 were violated

Holding

No violation established. Although the petitioner had a legitimate expectation that the property would be registered in his name, he already litigated the ownership dispute in a court with jurisdiction and was afforded a fair hearing.

Reasoning

While every person has the right to acquire and own property, the petitioner's claim over the suit property was already determined in the former suit before the Chief Magistrate. Having had a fair hearing and the dispute determined, he cannot claim violation of fair administrative action or property rights by re-litigating the same matter as a constitutional petition.

p. 7

Legal principles established

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  • For res judicata to apply, the issue in the former suit must have been determined by a court of competent jurisdiction and the dispute must be directly and substantially in issue between the same parties in both suits
  • A party who had a claim decided by a court of competent jurisdiction cannot re-litigate the same dispute camouflaged as a constitutional petition; the proper course is to pursue an appeal
  • Failure to enjoin a party in a previous suit cannot be visited against the opposing litigants where the party ought to have enjoined them

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27(1), (2), (4), (5)
  • Constitution of Kenya, 2010Article 40(1)(a), (b), (3)
  • Constitution of Kenya, 2010Article 47(1)
  • Civil Procedure ActSection 7 (Cap 21, Laws of Kenya)
  • Land Registration ActSection 26 (Act No. 3 of 2012)
  • Registered Land Act (repealed)Not specified

Cases cited (2)

  • Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd
  • Solomon K. Songok v Susan Chepkosgei
    (2014) eKLR
Jurisdiction invoked
Not expressly stated; petition brought under the Constitution of Kenya, 2010 (Articles 27, 40 and 47 cited)

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, "John Seguton Chelimo v Land Registrar Kabarnet & 2 others [2017] KEELC 1533 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1533/eng@2017-08-17

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