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ELCDismissedWanguru Arbitration Case No. 4 of 2005 (suit challenging adoption of award); Kerugoya ELC· [2017] KEELC 2519 (KLR)

Ndunda Miano v Mugo Riakathari [2017] KEELC 2519 (KLR)

Environment and Land Court
19 May 2017
BOB. N. Olao
1,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out an attempt to block a landowner's challenge to a tribunal's ruling, confirming that res judicata arguments must be properly proven.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel MWEA/TEBERE/B/26, sued seeking a declaration that the award of the Wanguru Land Disputes Tribunal in Wanguru Arbitration Case No. 4 of 2005, adopted as a judgment of the Wanguru Law Court, was null and void for want of jurisdiction, together with orders under Article 165(7) of the Constitution setting aside the award and the adopting order, and costs. The plaintiff pleaded that the Tribunal had no jurisdiction over title to land under Section 3(1) of the repealed Land Disputes Tribunal Act and had overruled prior High Court decisions dismissing the defendant's claims to the land. The defendant filed a Notice of Preliminary Objection on 17th August 2016 arguing the suit was res-judicata, citing Kerugoya ELC Appeal Case No. 194 of 2013 and Kerugoya ELC Case No. 77 of 2014, and also referring without particulars to a judicial review application at Embu. Applying Section 7 of the Civil Procedure Act and Karia & Another v Attorney General (2005 1 E.A 83), the court set out the four elements of res-judicata and held that the jurisdiction of the Wanguru Tribunal was neither directly and substantially in issue nor heard and finally decided in either Kerugoya case; the 2013 appeal concerned only the magistrate's duty to adopt a Tribunal award, and the 2014 case concerned cancellation of titles to sub-divisions and an injunction. Relying on Section 109 of the Evidence Act, the court held the party pleading res-judicata must avail the previous pleadings. The Preliminary Objection was dismissed with costs to the plaintiff; the main suit proceeds to hearing.

Key legal issues

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01

Whether the suit is res-judicata given Kerugoya ELC Appeal No. 194 of 2013

Holding

Not res-judicata; the issue of the Tribunal's jurisdiction was not raised or decided in that appeal

Reasoning

The 2013 appeal concerned dismissal of an appeal from a magistrate's adoption of a Mwea Land Disputes Tribunal award, where the court held the magistrate had no discretion but to adopt the award under Section 7(2) of the repealed Act. The validity of the Tribunal's jurisdiction was not in issue there, and under the repealed Act appeals from tribunals lay to the Appeals Committee and then the High Court, not in such an appeal.

p. 3
02

Whether Kerugoya ELC Case No. 77 of 2014 renders the suit res-judicata

Holding

It does not; that case concerns cancellation of titles to sub-divisions and an injunction, not the Tribunal's jurisdiction

Reasoning

Case 77 of 2014 involves cancellation of titles Nos. MWEA/TEBERE/4070, 4071 and 4072, sub-divisions of MWEA/TEBERE/26, and a permanent injunction against entry. The jurisdiction of the Wanguru Land Disputes Tribunal is not an issue in that case, so it cannot found a plea of res-judicata.

p. 3
03

Burden of proving res-judicata

Holding

The party pleading res-judicata bears the burden of placing previous pleadings before the court

Reasoning

Counsel for the defendant referenced a judicial review application at Embu but provided no particulars or pleadings. Relying on Section 109 of the Evidence Act, the court held it is the duty of the party and counsel to place before the court all evidence relied upon; the court will not fish for evidence in its registries. Only the two Kerugoya cases on record were considered.

p. 2

Legal principles established

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  • For res-judicata to be upheld, the issue must have been directly and substantially in issue, between the same parties, heard and finally decided by a competent court or tribunal
  • A party pleading res-judicata must avail the previous pleadings for the court's perusal
  • A challenge to the jurisdiction of a Land Disputes Tribunal lies through judicial review or a plaint, not an appeal from adoption of the award

Court orders

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  1. 1.The defendant's Preliminary Objection pleading res-judicata is dismissed
  2. 2.Costs of the Preliminary Objection to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(7)
  • Civil Procedure ActSection 7
  • Evidence ActSection 109
  • Land Disputes Tribunal Act (repealed)Section 3(1); Section 7(2)

Cases cited (1)

  • KARIA & ANOTHER VS ATTORNEY GENERAL
    2005 1 E.A 83
Jurisdiction invoked
Article 165(7) of the Constitution 2010; Land Disputes Tribunal Act (repealed)

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, "Ndunda Miano v Mugo Riakathari [2017] KEELC 2519 (KLR)", Case Analysis (2017). Wanguru Arbitration Case No. 4 of 2005 (suit challenging adoption of award); Kerugoya ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2519/eng@2017-05-19

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