Gitau Kamau v Ndungu Kamau & another [2017] KEELC 3431 (KLR)
The bottom line
#A Kenyan court refused to strike out a land dispute between step-brothers, ruling that tribunal decisions made without jurisdiction are void and cannot block a fresh suit.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The plea of res judicata fails because the former decisions were made by tribunals acting without jurisdiction and are nullities, and the Nyeri High Court Petition was dismissed without hearing on the merits
The court applied the test in DSV Silo v Owners of Sennar and Section 7 of the Civil Procedure Act, requiring a competent court that heard and finally decided the matter. The Maragua Land Dispute Tribunal and Provincial Appeals Tribunal determined ownership of land, exceeding their statutory jurisdiction under section 3(1) of the Land Disputes Tribunals Act; their awards, and the Chief Magistrate's decree adopting them, were nullities. A nullity cannot found res judicata, and the petition was not decided on its merits.
Striking out for frivolity, vexation and abuse of process
The suit discloses triable issues and should proceed to full hearing; striking out would be inconsistent with Article 50(1) fair hearing rights
Applying Order 2 Rule 15(1) and authorities on striking out, the court held the jurisdiction must be exercised sparingly in clear cases. The plaintiff is the registered proprietor seeking declarations that the tribunal awards and decree are null and void, and a determination of trust over 1.8 acres; these are triable issues. Article 50(1) guarantees a fair hearing, and Article 159(2)(d) favours determination on merits.
Limitation
The time-bar plea was unsupported by submissions and the court declined to strike out on that basis
The applicant asserted the suit was time barred but tendered no submissions in support. The respondent explained delay by changing course on advice of his advocates. While the court censured the respondent's indolence in not appealing or seeking judicial review, it gave him the benefit of the doubt and declined to dispose of the suit on that basis.
Legal principles established
#- A decision arrived at without jurisdiction is a nullity, and adoption of a nullity by a court does not cure it - a nullity begets nothing but a nullity
- Land Disputes Tribunals under the repealed Act had no jurisdiction to determine disputes over title or ownership of land
- Jurisdiction to strike out pleadings must be exercised sparingly and only in clear and obvious cases
Court orders
#- 1.The Applicant's Notice of Motion dated 2nd December 2015 is not merited and the same is hereby dismissed
- 2.Each party to meet their own costs since this is a family dispute
- 3.Parties must take steps to set this suit for hearing within the next 45 days
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title and ownership of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau Kamau v Ndungu Kamau & another [2017] KEELC 3431 (KLR)", Case Analysis (2017). Murang'a ELC (unspecified number; ruling on Notice of Motion dated 2nd December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3431/eng@2017-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.