David Kipleting Chemei v Kanamoi Cheptoo Kimoituk & Attorney General [2017] KEELC 2765 (KLR)
The bottom line
#A Kenyan landowner who skipped the appeal route against a Land Disputes Tribunal award lost his entire lawsuit for trying to relitigate it years later.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata
Yes - same parties and same subject matter were litigated and determined before the Land Disputes Tribunal, whose award was adopted as a court judgment and never appealed.
Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties, litigating under the same title, before a competent court and finally decided. Perusal of the Tribunal proceedings showed the same parties and the same subject matter (the suit land). The plaintiff did not appeal the award nor seek judicial review. The objection to the Tribunal's jurisdiction was not raised then and could not be raised now.
Whether the court has jurisdiction to entertain the suit
No - the suit being res judicata, the court has no jurisdiction to deal with it.
The plaintiff bypassed the statutory remedies under the repealed Land Disputes Tribunal Act (appeal to the Appeals Committee within 30 days or judicial review in the High Court) and instead filed a declaratory suit. Since the suit is res judicata, this court lacks jurisdiction, and the preliminary objection succeeds.
Whether the Land Disputes Tribunal had competent jurisdiction
Yes - the Tribunal was clothed with jurisdiction by the Act, and both parties submitted to it.
The plaintiff asserted the Tribunal lacked jurisdiction but did not specify whether it acted ultra vires or whether the Act withheld jurisdiction. The court found the Tribunal clothed with jurisdiction under the Act and both parties submitted to it; any jurisdictional objection should have been raised before the Tribunal at the time.
Legal principles established
#- Where parties submitted themselves to a tribunal clothed with jurisdiction under the applicable statute, the issue of that tribunal's lack of jurisdiction cannot be raised belatedly in a later suit challenging its award.
- A party aggrieved by a Land Disputes Tribunal award had to pursue the statutory remedies of appeal to the Appeals Committee or judicial review in the High Court.
- Article 159 procedural-technicalities principles cannot be used to perpetuate a suit that is res judicata.
Court orders
#- 1.The suit is struck out
- 2.Costs awarded to the defendants
- Jurisdiction invoked
- Environment and Land Court; Civil Procedure Act (res judicata and overriding objective)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kipleting Chemei v Kanamoi Cheptoo Kimoituk & Attorney General [2017] KEELC 2765 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2765/eng@2017-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.