Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutELC Petition No. 2 of 2017· [2018] KEELC 2128 (KLR)

Kitts Mbati John Mukonyole v Attorney General & 2 others [2018] KEELC 2128 (KLR)

Environment and Land Court of Kenya
25 July 2018
NMN.A. Matheka
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a land dispute petition because the same parties had already litigated the same issue through the courts.

What this practically means

#

Executive summary

#
The petitioner, registered owner of land parcel S/Kabras/Samitsi/99 through transmission in Succession Cause No. 242 of 1987, petitioned the Environment and Land Court at Kakamega alleging that a ruling of the Land Disputes Tribunal sitting at Malava in Dispute Cause No. 11 of 1997, made in favour of the 3rd respondent and signed by the tribunal chair alone, was irregular and made without jurisdiction. He sought certiorari to quash the tribunal award and prohibition to stop the Chief Magistrate, Kakamega from adopting it in Misc. Application No. 133 of 1997, contending the award violated his right to property under Article 40 of the Constitution. The 3rd respondent opposed the petition, asserting that the tribunal verdict was appealed to the Western Provincial Land Disputes Tribunal, which overturned the Malava decision, and that subsequent litigation in Kakamega HCC No. 31 of 1998 and Kakamega CMCC No. 133 of 1997, a review dismissed with costs by Justice G.B.M. Kariuki on 15 May 2006, and a further appeal dismissed in Kisumu Civil Appeal No. 16 of 2007, rendered the petition res judicata. The court, applying Section 7 of the Civil Procedure Act, agreed, holding that the matter had been finally decided between the same parties by competent courts. The petition was struck out with costs to the 3rd respondent.

Key legal issues

#
01

Whether the petition is barred by res judicata

Holding

The petition is res judicata having regard to the prior decisions in Kakamega HCC No. 31 of 1998 and Kisumu Civil Appeal No. 16 of 2007, which were decided between the same parties over the same subject matter.

Reasoning

The respondent showed that the verdict of the Malava Disputes Tribunal was appealed to the Western Provincial Land Disputes Tribunal, and the resulting litigation in Kakamega HCC No. 31 of 1998 and Kakamega CMCC No. 133 of 1997 proceeded through review dismissed by Justice G.B.M. Kariuki and a Court of Appeal in Kisumu Civil Appeal No. 16 of 2007, which was dismissed. Applying Section 7 of the Civil Procedure Act, the same matter directly and substantially in issue had been finally decided between the same parties by competent courts, so the petition could not be tried again.

p. 3
02

Whether the Land Disputes Tribunal had jurisdiction to award land and affect registered title

Holding

The petitioner argued the tribunal lacked jurisdiction to award one acre of his land as Section 3 of the Land Disputes Tribunal Act confined tribunals to boundary division, claims to occupy or work land, and trespass; but the court did not reach this issue, having struck out the suit as res judicata.

Reasoning

The petitioner contended the tribunal's ruling was ultra vires its statutory jurisdiction and violated Article 40. The court recorded the jurisdictional limits of the repealed Act but resolved the petition on the threshold res judicata objection, making the jurisdictional argument obiter rather than a ratio.

p. 3

Legal principles established

#
  • The doctrine of res judicata requires an end to litigation once a court of competent jurisdiction has rendered a conclusive decision between the same parties.

Court orders

#
  1. 1.The petition is struck out with costs to the 3rd Respondent

Authorities

#

Legislation

  • Constitution of Kenya (2010)Article 2(1) and (2)
  • Constitution of Kenya (2010)Article 40
  • Constitution of Kenya (2010)Article 23(1)
  • Constitution of Kenya (2010)Article 165(3)(b) and 165(5)(b)
  • Constitution of Kenya (2010)Article 162(2)(b)
  • Land Disputes Tribunal Act (Cap 303A, now repealed)Section 3(1)
  • Land Disputes Act No. 18 of 1990not specified
  • Civil Procedure Act (Cap 21)Section 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 10(1), 11(1) and 13
Jurisdiction invoked
Articles 22, 23, 40, 50, 162(2)(b) and 165 of the Constitution of Kenya (2010)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kitts Mbati John Mukonyole v Attorney General & 2 others [2018] KEELC 2128 (KLR)", Case Analysis (2018). ELC Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2128/eng@2018-07-25

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