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ELCStruck OutNot stated in the judgment· [2017] KEELC 2765 (KLR)

David Kipleting Chemei v Kanamoi Cheptoo Kimoituk & Attorney General [2017] KEELC 2765 (KLR)

Environment and Land Court
12 April 2017
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st defendant raised a preliminary objection dated 11th March 2016 arguing that the plaintiff's suit - which sought declarations that proceedings and an award of the Uasin Gishu Land Disputes Tribunal of 25th October 2006, and the resulting judgment and decree in Eldoret CMCC Award No. 37 of 2006, were null and void for want of jurisdiction, together with declarations of trespass, a permanent injunction and special damages - was incompetent, res judicata and beyond the court's jurisdiction. The objection was initially dismissed for want of prosecution on 16th February 2017, reinstated by consent, and heard on 23rd March 2017. The 1st defendant's counsel argued that the Land Disputes Tribunal Act (repealed) provided an appeal to the Appeals Committee within 30 days and that a declaratory suit was not contemplated by that Act; the 2nd defendant supported the objection, urging judicial review or appeal as the proper avenues. The plaintiff, relying on Mukisa Biscuit, contended the Tribunal lacked jurisdiction and that res judicata did not apply. The court framed three issues: res judicata, jurisdiction, and the Tribunal's competence. It found the same parties and subject matter had been litigated before the Tribunal, whose award was adopted as a judgment and never appealed; the plaintiff failed to appeal or seek judicial review; and the jurisdictional objection could not be raised belatedly. The court held the suit res judicata, lacking jurisdiction to entertain it, struck out the suit and awarded costs to the defendants.

Key legal issues

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01

Whether the suit is res judicata

Holding

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.

Reasoning

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.

p. 3
02

Whether the court has jurisdiction to entertain the suit

Holding

No - the suit being res judicata, the court has no jurisdiction to deal with it.

Reasoning

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.

p. 4
03

Whether the Land Disputes Tribunal had competent jurisdiction

Holding

Yes - the Tribunal was clothed with jurisdiction by the Act, and both parties submitted to it.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The suit is struck out
  2. 2.Costs awarded to the defendants

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 8(1)
  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Paul Muraya Kaguri VS Simon Mbaria Muchunu
    Nyeri E&L No. 71 of 2014
  • Costa Sote Kandie
    HCC No. 31/11
Jurisdiction invoked
Environment and Land Court; Civil Procedure Act (res judicata and overriding objective)

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, "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.