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ELCDismissed· [2018] KEELC 3377 (KLR)

Veronicah Kipsang & 9 others v Land Registrar, Kabarnet & 4 others [2018] KEELC 3377 (KLR)

Environment and Land Court
11 May 2018
AOA. Ombwayo
4,336 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land ownership petition because the same dispute had already been decided in an earlier case between the same parties.

What this practically means

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Executive summary

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The petitioners, members of Kabarnet Precious Women Group, petitioned the Environment and Land Court at Eldoret claiming they were duly allocated parcel L.R. Kabarnet/Municipality/175 by a letter of allotment dated 1st November 1996 and that the subsequent issuance of a Certificate of Lease over the same parcel to the 2nd Interested Party violated their constitutional rights to property (Article 40) and fair administrative action (Article 47). They sought declarations, certiorari to quash the registration, an order of access and damages. The 2nd Interested Party opposed the petition, contending that the ownership dispute had been fully litigated and determined in his favour in Nakuru CMCC Civil Suit No. 2862 of 1998, and that the petitioners' appeal therefrom was dismissed for want of prosecution in 2009, rendering the petition res judicata and an abuse of process. The respondents similarly submitted the petitioners had no title and lacked standing. The court, A. Ombwayo J, framed res judicata as the threshold issue. Applying Section 7 of the Civil Procedure Act and the authorities of Karia v Attorney General, Henderson v Henderson and John Florence Maritime Services, the court found the same parties had litigated the same ownership issue before a competent court which finally determined it, and that adding the state respondents was cosmetic. The petitioners were estopped from belatedly challenging the Chief Magistrate's pecuniary jurisdiction. The petition was dismissed with costs to the respondents, the remedy being appeal, not a fresh constitutional suit.

Key legal issues

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01

Whether the petition is res judicata

Holding

Yes. The same parties litigated the same issue of ownership of Kabarnet/Municipality/175 in Nakuru CMCC 2862 of 1998, which was heard and finally determined, and an appeal therefrom was dismissed for want of prosecution.

Reasoning

The court applied Section 7 of the Civil Procedure Act and the test in Karia v Attorney General: same subject matter, same parties litigating under the same title, before a competent court which determined the matter finally. The plaint, defence and counterclaim in the earlier suit showed the identical ownership dispute. Adding the state respondents did not create a new cause of action; the proper remedy was appeal. The petition was also an abuse of process.

p. 6
02

Whether the Chief Magistrate's Court lacked pecuniary jurisdiction over the earlier suit

Holding

No. The objection was not raised in the earlier suit and no evidence of lack of jurisdiction was adduced; the prayers sought (injunction and eviction) were within the Chief Magistrate's jurisdiction.

Reasoning

The court held the petitioners estopped from belatedly raising jurisdiction without establishing it, and noted the earlier prayers fell within the Chief Magistrate's competence.

p. 6

Legal principles established

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  • The doctrine of res judicata applies to constitutional petitions as well as ordinary civil suits
  • A matter determined by a competent court cannot be re-opened by way of a fresh constitutional petition; the remedy is appeal
  • Failure to raise the issue of pecuniary jurisdiction in the earlier suit estops a party from later challenging that court's jurisdiction

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Registered Land Act (repealed)Chapter 300
  • Land Registration ActSection 26
  • Constitution of Kenya, 2010Articles 40, 47
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(8)

Cases cited (3)

  • Karia & Another v The Attorney General and Others
    [2005] 1 EA 83
  • Henderson v Henderson
    [1843] 67 ER 313
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction under Articles 40 and 47 of the Constitution of Kenya, 2010

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, "Veronicah Kipsang & 9 others v Land Registrar, Kabarnet & 4 others [2018] KEELC 3377 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3377/eng@2018-05-11

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