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ELCOtherNot stated in the judgment· [2018] KEELC 188 (KLR)

Kefa Were v Benedict Chepkering [2018] KEELC 188 (KLR)

Environment and Land Court (first-instance; delivered at Kitale)
6 December 2018
CYC. K. Yano
1,946 words in judgment
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The bottom line

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A Kenyan court blocked a landowner from re-fighting a land dispute her family had already lost at a tribunal, because you cannot re-litigate decided cases.

What this practically means

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Executive summary

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This first-instance ruling of the Environment and Land Court at Kitale, delivered by C.K. Yano, J on 6th December 2018, determined a Notice of Preliminary Objection dated 21st May 2018 in which the plaintiff objected to the defendant's counter-claim on the ground of res judicata. The plaintiff contended that the dispute over Plot No. 300 Kospirin Settlement Scheme had been decided by the Kwanza Land Disputes Tribunal in his favour, that the award was adopted as an order of the court in Kitale SPMCC Land Case No. 54 of 2003 and a decree issued, and that the decree was never challenged or set aside. The defendant opposed, arguing the matter was not res judicata, that the objection was raised belatedly after about 14 years, that the tribunal lacked jurisdiction over land under adjudication, and that the objection was an abuse of process. The court framed a single issue: whether the counter-claim was res judicata. Applying Section 7 of the Civil Procedure Act and the tests in Bernard Mugo Ndegwa and Nancy Mwangi, and following the Court of Appeal's decision in Njue Ngai, the court held that the counter-claim raised the same issues between the same parties under the same title as the tribunal decision adopted by the court. The defendant had not appealed nor sought judicial review, and the court had no jurisdiction to re-examine the merits of the tribunal's decision. The court found no evidence that the land was under an adjudication section. The preliminary objection was upheld and the counter-claim was dismissed with costs as incompetent and an abuse of the court process.

Key legal issues

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01

Whether the defendant's counter-claim is res judicata

Holding

The counter-claim is res judicata because it raises the same issues, between the same parties and under the same title, as were decided by the Kwanza Land Disputes Tribunal and adopted as an order of the court in Kitale SPMCC Land Case No. 54 of 2003, which was never set aside.

Reasoning

Applying Section 7 of the Civil Procedure Act and the five-point test in Bernard Mugo Ndegwa v James Nderitu Githae, the court found identity of parties, title and subject matter (Plot No. 300 Kosprin Settlement Scheme). The defendant had avenues of appeal to the Provincial Land Disputes Tribunal or judicial review but took neither; the court therefore lacked jurisdiction to re-examine the merits of the tribunal's decision. The claim that the land was under adjudication was not supported by evidence.

p. 2

Legal principles established

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  • A counter-claim that re-litigates issues already decided by a Land Disputes Tribunal whose award was adopted as a court order, and which was never challenged on appeal or by judicial review, is res judicata under Section 7 of the Civil Procedure Act and is an abuse of the court process.

Court orders

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  1. 1.The plaintiff's preliminary objection dated 21st May 2018 is upheld
  2. 2.The defendant's counter-claim is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Disputes Tribunal Act (now repealed)Section 2
  • Land Adjudication ActNot specified

Cases cited (3)

  • Bernard Mugo Ndegwa -vs- James Nderitu Githae & 2 Others
    [2010] eKLR
  • Nancy Mwangi T/A Worthlin Marketers -vs- Airtel Networks (K) Ltd (formerly Celtel Kenya Ltd) & 2 Others
    [2014] eKLR
  • Njue Ngai -vs- Ephantus Njiru Ngai & Another
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction over land dispute; decision rendered under Section 7 of the Civil Procedure Act Cap 21 (res judicata)

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, "Kefa Were v Benedict Chepkering [2018] KEELC 188 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/188/eng@2018-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.