County Government of Lamu v National Land Commission & another [2017] KEELC 1950 (KLR)
The bottom line
#Lamu County lost its bid to stop the Manda Island settlement scheme because the court said it was re-litigating issues it had already had a chance to argue.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition and the conservatory application are res judicata
Yes. The cause of action - the roles of the County Government and the NLC in the survey, mapping and demarcation of the Manda Island Settlement Scheme - was already litigated and determined on the merits in Malindi ELC JR No. 4 of 2016, in which the Petitioner was a party but filed no affidavit and no appeal.
The court found that all parties were parties in Malindi ELC No. 4 of 2016, where Justice Angote declined to halt the adjudication process and held that the County Government could not claim a role in surveying and mapping already done before its establishment. The Petitioner sat through the proceedings without filing an affidavit supporting the very complaint it now raises, and never appealed. Under the Henderson v Henderson principle, matters that could have been raised are barred.
Whether res judicata can bar a constitutional petition
Yes. Res judicata is a doctrine of general application and applies to constitutional proceedings, though it must be sparingly invoked in the clearest of cases.
Counsel for the Petitioner argued that constitutional rights keep evolving and that the court should be slow to apply res judicata. The court relied on the Court of Appeal's decision in John Florence Maritime Services Ltd, which held that res judicata may be raised as a valid defence to a constitutional claim, being a doctrine of general application relating to the jurisdiction of the court, subject to being invoked sparingly.
Whether the Respondent required the Petitioner's written consent to exercise its mandate
The court saw no legal provision requiring the Respondent (NLC) to seek the Petitioner's written consent before exercising its mandate under Article 67 of the Constitution.
Having considered the circumstances, the court found no provision of law obliging the NLC to obtain the County Government's written consent before undertaking its statutory mandate, and in any event the dispute was barred by res judicata.
Legal principles established
#- Res judicata under Section 7 of the Civil Procedure Act applies to constitutional litigation and may be raised as a valid defence even in petitions, though sparingly and only in the clearest of cases
- The ingredients of res judicata are that the issue was directly and substantially in issue in a former suit, between the same parties or their privies litigating under the same title, before a competent court which finally decided it
Court orders
#- 1.The application dated 16th January 2017 is dismissed
- 2.The Petition is struck out
- 3.Costs to the Respondent
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Environment and Land Court jurisdiction; petition alleging breach of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Lamu v National Land Commission & another [2017] KEELC 1950 (KLR)", Case Analysis (2017). Constitutional Petition dated 14th December 2016 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1950/eng@2017-09-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.