Morris Kirema M’Ituru v James M’Amanja M’Rukunga & 2 others [2018] KEELC 1703 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata
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
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.
Exhaustion of statutory remedies in land adjudication and consolidation
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
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.
Nature of a preliminary objection
Applying the Mukhisa Biscuit test, the objection was treated as a pure point of law that could dispose of the suit
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.
Legal principles established
#- 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
#- 1.Preliminary objection upheld as merited
- 2.Petition dismissed with costs to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- GEORGE M’ARIMI v ZACHARIA KAARIA MUKIRA & another[2024] KEELC 3690 (KLR)1 Feb 2024
- Maingi Peter Stanley & another v Juda K.M. Imunya & 2 others [2022] KEELC 1056 (KLR)[2022] KEELC 1056 (KLR)2 Mar 2022
Cite this brief
#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.