Karongo (Suing as the legal representative of the Estate of Eunice Wanjiru Munga) v Kariuki & 3 others (Petition 604 of 2015) [2017] KEELC 3034 (KLR)
The bottom line
#The Environment and Land Court struck out a petition seeking to undo a 2007 land tribunal award, confirming that old tribunal decisions remain binding unless challenged through appeal or judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether the challenge to the Petitioner's grant of letters of administration constitutes a valid preliminary objection on locus standi
Rejected - impugning the grant requires evidence and nullification proceedings in the succession cause, not a preliminary point of law
The 1st Respondent challenged the Petitioner's capacity by reference to the consanguinity pyramid in the Law of Succession Act and the validity of her grant. The court held that interrogating or impugning a grant cannot be determined as a preliminary point of law since it calls for evidence, further ascertainment of facts, and nullification proceedings within the succession cause. The ground was accordingly rejected as not qualifying as a preliminary objection.
Whether the suit is time barred under Section 9(2) of the Law Reform Act
Rejected - the six-month limitation in the Law Reform Act applies to the High Court, not the Environment and Land Court; the 12-year limitation periods under the Limitation of Actions Act had not lapsed
Part VI of the Law Reform Act provides a framework for the exercise of the High Court's civil and criminal jurisdiction over prerogative writs. Although of equal status, the Environment and Land Court is not the High Court contemplated under Part VI, so the six-month limitation does not apply to judicial review under Section 13(7) of the Environment and Land Court Act. In any event, the petition is not a judicial review application; the 12-year periods under Sections 7 and 4(4) of the Limitation of Actions Act, running from 2007 and 2009, had not lapsed by 2015.
Whether the Environment and Land Court lacks jurisdiction to grant orders of certiorari
Rejected - Section 13(7) of the Environment and Land Court Act expressly confers power to make prerogative orders, including certiorari
The court reproduced Section 13(7) of the Environment and Land Court Act, which empowers the court to grant any relief including prerogative orders. Since certiorari is a prerogative order, the objection limb had no legal basis and was disallowed, with the court affirming its jurisdiction to grant certiorari.
Whether the Petition and accompanying Chamber Summons are res judicata
Upheld - a fresh declaratory petition does not lie against a tribunal determination or judgment obtained under the repealed Land Disputes Act; the proper remedies are judicial review or appeal under Section 16A of the Environment and Land Court Act
The court held that decisions and adoption judgments under the repealed Land Disputes Act remain valid by virtue of Section 23(3)(e) of the Interpretation and General Provisions Act. Relying on Florence Nyaboke Machani, it agreed that a declaratory suit is not a remedy available to a party aggrieved by such a decision; allowing it would offend finality in litigation and public policy. Where the decision has been adopted as a judgment, the remedy is an appeal under Section 16A; where not adopted, judicial review (subject to Order 50 Rule 6 enlargement of time). The Petition was struck out.
Legal principles established
#- A preliminary objection is a pure point of law, assumed on the correctness of the pleaded facts, and cannot be raised where facts must be ascertained or discretion exercised
- Section 23(3)(e) of the Interpretation and General Provisions Act preserves decisions, awards and adoption judgments made under a repealed statute; they remain valid and enforceable
- The six-month limitation period in Section 9 of the Law Reform Act applies to the High Court and does not govern judicial review proceedings in the Environment and Land Court
- The Environment and Land Court has jurisdiction to grant prerogative orders including certiorari under Section 13(7) of the Environment and Land Court Act
- A fresh declaratory petition does not lie against a determination, award or judgment made within the framework of the repealed Land Disputes Act; the available remedies are judicial review (where the decision has not been adopted as a judgment) or appeal under Section 16A of the Environment and Land Court Act
- A valid judgment of a court, unless overturned on appeal, remains enforceable irrespective of questions as to the jurisdiction of the court that issued it
Court orders
#- 1.The Preliminary Objection by the 1st Respondent is upheld on the ground that a fresh declaratory suit does not lie against a determination or judgment obtained within the framework of the repealed Land Disputes Act
- 2.The Petition is struck out
- 3.The 1st Respondent shall have costs of the Petition
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(7) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karongo (Suing as the legal representative of the Estate of Eunice Wanjiru Munga) v Kariuki & 3 others (Petition 604 of 2015) [2017] KEELC 3034 (KLR)", Case Analysis (2017). Petition (undated and unsigned) filed 10/06/2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3034/eng@2017-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.