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ELCDismissedELC Petition No. 2 of 2017 (Formally NKU High Court Petition No. 26/2013)· [2018] KEELC 1274 (KLR)

Peter Mucheru Njuguna & 7 others v Attorney General & 4 others [2018] KEELC 1274 (KLR)

Environment and Land Court
23 October 2018
5,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed siblings' bid to reclaim their late father's land, ruling the same dispute had already been decided and the registered owners' titles stand.

What this practically means

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Executive summary

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Eight children of the late Paul Njuguna Mucheru petitioned the High Court (later transferred to the Environment and Land Court at Nyahururu) alleging that the subdivision and registration of Nyandarua/Passenga/46 - their father's ancestral land - in the names of the 4th Respondent (their father's widow) and the 5th Respondent (a purchaser) violated their rights to property, fair administrative action and information, and sought cancellation of the resultant titles and conservatory orders. The State respondents never entered appearance. The 4th and 5th Respondents opposed, contending the land was registered jointly in the deceased's and the widow's names, that distribution among the three households occurred during the deceased's lifetime, that the Petitioners lacked locus standi without letters of administration, and that the Petition was res judicata by virtue of the 1st Petitioner's earlier, dismissed Nakuru Constitutional Petition No. 6 of 2011. The court framed three issues: res judicata, Article 40 violation, and infringement of the right to inherit. Applying the test in Bernard Mugo Ndegwa, the court found the issues, parties and title identical and the earlier decision final, holding the Petition res judicata and an abuse of process; adding parties could not evade the doctrine. In the alternative, it found no Article 40 breach: the land was subdivided and registered during the deceased's lifetime, ceased to form part of his estate, and the registered proprietors held indefeasible titles under Section 26(1) of the Land Registration Act. The Petition was dismissed with costs to the 4th and 5th Respondents on 23rd October 2018.

Key legal issues

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01

Res judicata

Holding

The Petition is res judicata, being substantially identical to Nakuru High Court Constitutional Petition No. 6 of 2011 which was dismissed

Reasoning

The court compared the pleadings and judgment in Petition No. 6 of 2011 and found the matters in issue - Articles 40, 35(1) and 47 claims - identical, the parties the same (the 2nd to 7th Petitioners deemed to claim under the 1st Petitioner per Explanation 6 of Section 7), the title the same, jurisdiction concurrent, and the earlier decision final. Adding parties was cosmetic surgery.

p. 7
02

Right to property under Article 40

Holding

No violation established; the Petitioners have no legal or proprietary interest in the resultant parcels

Reasoning

The suit land was subdivided and registered in the names of the 4th and 5th Respondents during the deceased's lifetime, so it ceased to form part of his estate. There was no allegation of arbitrary deprivation or state acquisition under Article 40(2) or (3). Under Section 26(1) of the Land Registration Act the registered proprietors hold indefeasible titles.

p. 8
03

Right of inheritance

Holding

The right to inherit does not arise as the property was not part of the estate

Reasoning

The deceased distributed his properties among his three households during his lifetime; the suit land went to the 4th Respondent and was registered jointly with her. Subdivision and sale to the 5th Respondent, with Land Control Board consent, terminated the deceased's interest. The Petitioners never challenged these dealings while the deceased was alive.

p. 8

Legal principles established

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  • A matter is res judicata where the issues, parties, title and jurisdiction concur and the former decision is final; adding parties or causes of action cannot evade the doctrine
  • A court cannot sit on appeal over its own decision except through review, which must be pursued as a procedure
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership under Section 26(1) of the Land Registration Act
  • Res judicata serves to prevent multiplicity of suits and to bring litigation to an end

Court orders

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  1. 1.The Petition herein is dismissed with costs to the 4th and 5th Respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 22, 27(4), 35(1)(b), 40, 44(i), 47(1), 48, 258, 259(b)
  • Civil Procedure ActSection 7 (including Explanation 6)
  • Land Registration ActSections 26(1), 91
  • Registered Land Act (repealed)Section 27
  • Land Control ActCap 302
  • Civil Procedure RulesOrder 40 Rule 6
  • Marriage Actnot specified

Cases cited (8)

  • Katiba Institute vs Presidents Delivery Unit & 3 Others
    Nairobi High Court Constitutional Petition No. 468 of 2017
  • Arnacherry Limited vs. Attorney General
    Nairobi High Court Constitutional Petition No. 248 of 2013
  • John Florence Maritime Services Ltd & another vs. Cabinet Secretary for transport and Infrastructure & 3 Others
    [2015] eKLR
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • E.T vs Attorney General & Another
    (2012) eKLR
  • Omondi Vs National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu vs Wambugu and another
    Nairobi HCCC No. 2340 of 1991 (unreported)
  • Nakuru High Court Constitutional Petition No. 6 of 2011 (1st Petitioner v Ol Kalou Land Control Board & 2 Others)
    Judgment of R.V.P Wendoh J delivered 25th July 2012
Jurisdiction invoked
Articles 22, 23, 35(1), 40, 44(i), 48, 258 and 259(b) of the Constitution; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Peter Mucheru Njuguna & 7 others v Attorney General & 4 others [2018] KEELC 1274 (KLR)", Case Analysis (2018). ELC Petition No. 2 of 2017 (Formally NKU High Court Petition No. 26/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1274/eng@2018-10-23

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