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ELCDismissedNot stated in the excerpt· [2018] KEELC 493 (KLR)

Josphat Kamande Macharia v Livingstone Wanyoike King’ara [2018] KEELC 493 (KLR)

Environment and Land Court
6 December 2018
JKJ. G. Kemei
1,841 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a tribunal's decision made without jurisdiction cannot block a fresh land trust lawsuit.

What this practically means

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Executive summary

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By an amended plaint filed on 27 July 2010, the Plaintiff sought a declaration that the Defendant holds parcels LOC6/KANDANI/1706 & 1707 and LOC17/SABASABA/1537 in trust for both of them in equal shares, with trusteeship determined in the Plaintiff's favour. The Defendant filed a preliminary objection contending that the suit was res judicata by virtue of LDT case No. 196 of 2005, Central Provincial Tribunal Committee No. Maragua 7 of 2006 and Misc Application Civil Suit No. 1061 of 2007, that the plaint was an abuse of process, and that the suit was brought in bad faith; he also relied on section 7 of the Civil Procedure Act and PMCC No. 302 of 1992, Murang'a. The Plaintiff, who filed no formal response but filed submissions, argued that a customary trust claim is not subject to limitation, that he was not party to PMCC No. 302 of 1992, and that the facts were contested. The court framed two issues: whether the objection was a pure point of law, and whether the suit was res judicata. Applying Mukisa Biscuit and Oraro v Mbaja, the court held the objection was not a pure point of law since res judicata required factual investigation of the prior suits. On the merits of the objection, the court found the Tribunal proceedings were a nullity because the Land Dispute Tribunal lacked jurisdiction to determine title, and that PMCC No. 302 of 1992 involved different parties and issues. The suit was held not res judicata; the preliminary objection was dismissed with costs to the Plaintiff, and the matter set down for trial on its merits.

Key legal issues

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01

Whether the Preliminary Objection was a pure point of law

Holding

It was not, because determining res judicata required establishing facts by revisiting the previous suits.

Reasoning

Applying the Mukisa Biscuit and Oraro v Mbaja definitions, an objection that depends on contested factual details calling for evidence cannot qualify as a true preliminary objection. Determining whether there was sameness of parties, issues and subject matter required the court to investigate the prior proceedings, taking the matter out of the realm of a pure point of law.

p. 2
02

Whether the suit is res judicata

Holding

It is not res judicata.

Reasoning

The LDT case, the Central Provincial Tribunal Committee case and Misc Application Civil Suit No 1061 of 2007 cannot bar the suit because the Land Dispute Tribunal lacked jurisdiction to determine title, rendering its decision a nullity. As to SPMCC No 302 of 1992, the Plaintiff was not a party and the issues differ; requiring him to have sought enjoinment stretches the doctrine out of context.

p. 3

Legal principles established

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  • A decision rendered without jurisdiction is a nullity and cannot operate as res judicata.
  • A preliminary objection that requires investigation of contested facts is not a pure point of law.

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Plaintiff
  2. 2.The suit to be determined on trial and on its merits

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Land Dispute Tribunal Act (now repealed)section 3(1)

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Oraro vs. Mbaja
    [2005] 1 KLR 141
  • Henderson Vs Henderson
    (1843) All E R 378
  • Thomas Ondieki & Anor Vs National Bank of Kenya Limited & Anor
    (2015) EKLR CA No 182 of 2011
  • The Owners of the Motor Vessel Lilian 'S' v. Caltex Kenya Limited
    (1989) KLR 1
  • Sir Ali Bin Salim vs. Shariff Mohamed Shatry
    Civil Appeal No. 29 1940
Jurisdiction invoked
Original civil jurisdiction; suit on customary trust over land

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, "Josphat Kamande Macharia v Livingstone Wanyoike King’ara [2018] KEELC 493 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/493/eng@2018-12-06

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