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ELCDismissedNot stated in judgment (Petition filed 6th December 2016, Meru ELC)· [2018] KEELC 1703 (KLR)

Morris Kirema M’Ituru v James M’Amanja M’Rukunga & 2 others [2018] KEELC 1703 (KLR)

Environment and Land Court
3 October 2018
1,451 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a land petition because the owner had to use statutory land adjudication remedies first, and had already litigated the same dispute.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection by the 1st Respondent seeking dismissal of a petition filed on 6th December 2016 in the Environment and Land Court at Meru. The 1st Respondent argued that the petitioner failed to exhaust statutory remedies under the Land Consolidation Act (Cap 283) and the Land Adjudication Act (Cap 284), whose provisions make the adjudication officer's decision on objections final, and that the petitioner had already litigated the same subject matter in Judicial Review No. 5 of 2014 (Meru), which was struck out for failure to file a substantive motion under Order 53. The petitioner countered that judicial review is sui generis, that Articles 22(1) and 23(f) of the Constitution confer jurisdiction on the court to grant judicial review orders in a petition, that the objection did not raise a pure point of law per Mukhisa Biscuit, and that Abdullah Mangi Mohamed was distinguishable. The court applied the Mukhisa Biscuit test on preliminary objections, compared the two suits and found them to involve the same parties and similar orders over the same decision of 5th December 2013 in Objection No. 636 over parcel 6348 in Akaiga Adjudication Section, and held the petition res judicata under Section 7 of the Civil Procedure Act. The court further held that the statutory adjudication mechanisms must be exhausted before resorting to the constitutional court, endorsing Abdullah Mangi Mohamed. The preliminary objection was upheld and the petition dismissed with costs to the 1st Respondent.

Key legal issues

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01

Res judicata

Holding

The petition is res judicata because it replicates Judicial Review No. 5 of 2014 (Meru) between the same parties seeking similar certiorari orders over the same decision

Reasoning

The court compared the petition with Judicial Review No. 5 of 2014, in which the petitioner sought certiorari to quash the decision of 5th December 2013 in Objection No. 636 over parcel 6348 in Akaiga Adjudication Section. The present petition seeks the same orders against the same decision. Section 7 of the Civil Procedure Act bars a court from trying a matter directly and substantially in issue in a former suit between the same parties heard and finally decided by a competent court.

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02

Exhaustion of statutory remedies in land adjudication and consolidation

Holding

A party disputing rights in land during adjudication must utilise the statutory mechanisms under the Land Consolidation Act and Land Adjudication Act; decisions of the Adjudication Officer are not subject to appeal, and constitutional courts should not be clogged with property disputes requiring prior statutory determination

Reasoning

The court held that the two statutes contain elaborate dispute-resolution mechanisms and that rights are ascertained only at the tail end of the process. Section 26(3) of the Land Consolidation Act bars appeals against the Adjudication Officer's decision. The court agreed with the holding in Abdullah Mangi Mohamed that statutory procedures should be utilised rather than clogging the Constitutional Court.

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Nature of a preliminary objection

Holding

Applying the Mukhisa Biscuit test, the objection was treated as a pure point of law that could dispose of the suit

Reasoning

The court restated the classic formulation that a preliminary objection consists of a point of law pleaded or arising by clear implication of the pleadings which, if argued as a preliminary point, may dispose of the suit, and that it assumes all facts pleaded by the other side are correct and cannot be raised where facts are to be ascertained or discretion exercised.

p. 2

Legal principles established

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  • Where a dispute as to entitlement to property is governed by a statutory dispute-resolution mechanism, that mechanism must be utilised before resorting to a constitutional court
  • A matter previously litigated between the same parties over the same subject matter and decided by a competent court is res judicata

Court orders

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  1. 1.Preliminary objection upheld as merited
  2. 2.Petition dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Land Consolidation ActSection 26, particularly 26(3)
  • Land Adjudication ActSection 30 (appeal to Minister within 60 days)
  • Constitution of Kenya 2010Articles 22(1) and 23(f)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 53

Cases cited (2)

  • Abdullah Mangi Mohamed vs Lazarus Beja & 5 Others
    [2012] eKLR; Constitutional Petition No. 59 of 2011
  • Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    1969 E.A 696
Jurisdiction invoked
Article 23(f) and Article 22(1) of the Constitution of Kenya 2010 (as invoked by the petitioner); original constitutional petition jurisdiction of the ELC

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Morris Kirema M’Ituru v James M’Amanja M’Rukunga & 2 others [2018] KEELC 1703 (KLR)", Case Analysis (2018). Not stated in judgment (Petition filed 6th December 2016, Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1703/eng@2018-10-03

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