Nkanatha Kaburia Ngaruni v Chairman Land Disputes Tribunal & 2 others [2017] KEELC 2743 (KLR)

The interested party held title to KIBIRICHIA/GATHUINE/89 since 1997. The applicant was in occupation and had removed boundary marks. The tribunal's site visit confirmed trespass. Under section 3 of the Land Dispute Tribunals Act (then repealed), civil disputes involving trespass to land fall within the tribunal's mandate. The court therefore distinguished title disputes from trespass disputes and found the tribunal properly seized of the matter.

The prior High Court case HCCC No. 145 of 1994 was between Misheck Kibiti M'ikiao and Julia Karoki Ngaruni, different parties from the tribunal dispute. The interested party only entered the picture as a purchaser at the public auction in execution of the decree and thereafter obtained title. Her tribunal claim concerned trespass by the applicant on her land, a distinct dispute. The applicant's res judicata arguments were accordingly found incorrect.

State counsel argued that what should have been challenged was the judgment entered in LDT No. 23 of 2009 under the Civil Procedure Act. The court held the judgment existed solely for implementation of the tribunal's decision, so adoption did not extinguish the decision itself. The applicant was therefore entitled to target the tribunal's decision in judicial review, though the motion ultimately failed on jurisdiction and res judicata grounds.