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ELCStruck OutELC Petition (Embu) filed 9.02.2017 (petition dated 8.02.2017)· [2018] KEELC 4149 (KLR)

Elijah Njeru Gachoki& 7 others v Cabinet Secretary Ministry of Land Housing & Urban Development & 19 others [2018] KEELC 4149 (KLR)

Environment and Land Court
1 March 2018
YAY.M. Angima
3,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioners, adults of Kirinyaga County suing on their own behalf and as members of the Kirinyaga Mihiriga Kenda (nine Agikuyu clans), petitioned the Environment and Land Court at Embu seeking declarations that Mwea Trust Land/Mwea Settlement Scheme (L.R. MWEA/TEBERE/1314) is their legitimate property, or alternatively public land under Article 62 or community land under Article 63; an order for fresh adjudication and demarcation in line with a March 2016 Senate report; a perpetual injunction against alienation; and cancellation of titles. Together with the petition they sought interim injunctive relief by a Notice of Motion dated 8.02.2017. Several Respondents filed grounds of opposition; the 3rd Respondent (County Government of Embu) filed a replying affidavit contending that the petition was res judicata and sub judice, that a judgment had already been entered for the Mihiriga Kenda in Kerugoya ELC No. 119 of 2013, and that the court lacked jurisdiction over county boundary, taxation and political representation issues. No submissions were filed by any party. The court, per Y.M. Angima J, found that the petition was brought on behalf of the same clans over the same suit property already adjudicated in Kerugoya ELC No. 119 of 2013, in which judgment was entered as prayed on 31.07.2014, and that changing the respondents and re-packaging the dispute could not defeat res judicata. Only the pure land question fell within the court's jurisdiction under section 13 of the Environment and Land Court Act. Both the petition and the interlocutory application were struck out with costs to the participating Respondents.

Key legal issues

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01

Whether the petition was res judicata

Holding

The petition is barred by res judicata because it is brought on behalf of the same Mihiriga Kenda clans over the same suit property that was adjudicated in Kerugoya ELC No. 119 of 2013, and the substitution of respondents and addition of county-boundary complaints do not disguise the same dispute

Reasoning

The earlier Kerugoya suit was brought by representatives of the same nine clans seeking a declaration of ownership of L.R. MWEA/TEBERE/1314 and trust over it; judgment was entered as prayed on 31.07.2014. Elijah Njeru Gachoki appeared in both proceedings. The fresh adjudication claims ought to have been raised then. Changing strategy by suing different government agencies and adding the county governments cannot defeat the doctrine under the Kamunye test and section 7 of the Civil Procedure Act.

p. 6
02

Whether the court has jurisdiction over the county boundary, taxation and political representation questions

Holding

Only the land question falls within section 13 of the Environment and Land Court Act 2011; the other questions belong to a different forum, but no reliefs were sought on them so nothing turns on the point

Reasoning

The Petitioners' affidavit identified boundary extent, taxation, political representation, legislation and county services as underlying questions. The court held that only land ownership (item iii) falls within its statutory jurisdiction under section 13 of the Environment and Land Court Act 2011; since the ten reliefs all concern the suit property and no relief was sought on the other questions, the jurisdictional objection was academic given the res judicata finding.

p. 6

Legal principles established

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  • A party cannot evade res judicata by changing the parties sued or re-packaging the same dispute as a new cause of action, including as a public-law petition
  • Res judicata extends, under Explanation 4 to section 7 of the Civil Procedure Act, to every matter which ought to have been raised in the previous suit; parties may not litigate by installments

Court orders

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  1. 1.The petition dated 8.02.2017 is struck out
  2. 2.The Notice of Motion dated 8 February 2017 is struck out
  3. 3.Costs of the petition and application awarded to the 1st, 3rd, 5th, 6th and 8th Respondents who participated in the proceedings

Authorities

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Legislation

  • Civil Procedure ActSection 7 (and Explanation No. 4)
  • Environment and Land Court ActSection 13
  • Constitution of Kenya 2010Articles 62 and 63

Cases cited (7)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Kamunye & Others v The Pioneer Assurance Society Ltd
    (1971) E.A. 263
  • Njue Ngai v Ephantus Njiru Ngai & Another
    (2016) eKLR
  • Likay Estate Ltd & Another v Shah Hiri Monak & 2 Others
    (2006) eKLR
  • E.T. v 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
Jurisdiction invoked
Section 13 of the Environment and Land Court Act 2011 (limited to the land question); petition filed under 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, "Elijah Njeru Gachoki& 7 others v Cabinet Secretary Ministry of Land Housing & Urban Development & 19 others [2018] KEELC 4149 (KLR)", Case Analysis (2018). ELC Petition (Embu) filed 9.02.2017 (petition dated 8.02.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4149/eng@2018-03-01

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