John Seguton Chelimo v Land Registrar Kabarnet & 2 others [2017] KEELC 1533 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition is res judicata in light of Nakuru CMCC No. 2860 of 1998
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.
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.
Whether the allotment letters were properly issued
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.
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.
Whether the petitioner's constitutional rights under Articles 27, 40 and 47 were violated
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.
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.
Legal principles established
#- 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
#- 1.The petition is dismissed with costs
- Jurisdiction invoked
- Not expressly stated; petition brought under the Constitution of Kenya, 2010 (Articles 27, 40 and 47 cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.