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ELCDismissedELC Petition No 24 of 2017· [2018] KEELC 4336 (KLR)

John Mwangi Kanyi & 2 others v Mary Wangui Waitathu & 2 others [2018] KEELC 4336 (KLR)

Environment and Land Court
8 February 2018
3,773 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 Nyahururu ruled a land dispute was not settled twice over, allowing the landowners' constitutional challenge to proceed.

What this practically means

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Executive summary

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The three Petitioners, registered proprietors of land parcels Nyandarua/Karagoini Block 1/56, 1/705 and 1/57, filed a Petition and Notice of Motion dated 11th July 2017 challenging a letter dated 22nd October 2015 by the Land Registrar, Nyandarua, which directed the excision of two acres from their titles in favour of the 1st Respondent. They sought declarations that the Registrar's ruling and the excision were unconstitutional, null and void, contrary to Articles 40, 47 and 50 of the Constitution, restoration of the excised land, and conservatory orders. Before the Petition could be heard, the 1st Respondent filed a Notice of Preliminary Objection dated 29th September 2017 arguing that the Petition was res judicata, being premised on the same matters determined by the Ndaragwa Land Disputes Tribunal in Case No. NDA/17/2009, whose award was adopted as judgment in Nyahururu PMC Land Dispute Case No. 6 of 2010, and that the Petition was an abuse of court process warranting striking out. The court framed two issues: whether the suit was res judicata and whether the Preliminary Objection was sustainable. Applying the test in Bernard Mugo Ndegwa v James Nderitu Githae, the court found the matters in issue and the parties were not identical across the two suits, and that the constitutional claims could not have been raised in the subordinate court for want of jurisdiction. It further found the Registrar's letter was not a ruling of a competent court but a mere opinion, and the Tribunal award involved further investigation and lacked finality. Applying Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, the court held the Preliminary Objection unsustainable and dismissed it with costs to the Petitioners. The Petition and application remain pending for hearing on the merits.

Key legal issues

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01

Whether the Petition is res judicata in light of the Ndaragwa Land Disputes Tribunal award adopted in Nyahururu PMC Land Dispute Case No. 6 of 2010

Holding

The Petition is not res judicata because the matters, issues and parties are not identical to those in the earlier proceedings

Reasoning

The Tribunal claim concerned boundary determination and acreage entitlement, whereas the Petition challenges the 2nd Respondent's letter of 22nd October 2015 directing excision of two acres as unconstitutional. The parties also differ, and the constitutional questions raised could not have been determined by the subordinate court for want of jurisdiction. The Tribunal award was for further investigation and did not constitute a final decision.

p. 5
02

Whether the Preliminary Objection dated 29th September 2017 is sustainable in law

Holding

The Preliminary Objection is unsustainable because it failed the test in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd

Reasoning

The court applied the classic definition of a preliminary objection as a pure point of law capable of disposing of the suit without ascertainment of evidence. The res judicata plea involved argumentative matters, including whether the Registrar's letter constituted a ruling of a competent court, which required canvassing at a hearing rather than determination on a preliminary point.

p. 6
03

Whether the 2nd Respondent's letter dated 22nd October 2015 constituted a ruling of a competent court

Holding

The letter did not constitute a ruling by a competent court but only an opinion of the 2nd Respondent, not adopted as an order of the court

Reasoning

The court found that the Registrar's letter to the Principal Magistrate recommending excision of two acres had not been adopted as an order of the court, so the matter remained pending before the Chief Magistrate's court. This finding undermined the finality element of res judicata, though the court acknowledged the issue was argumentative and best canvassed at a hearing.

p. 6

Legal principles established

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  • A preliminary objection must consist of a pure point of law which, if argued as a preliminary point, may dispose of the suit
  • To establish res judicata, a court must compare the issues determined, the parties and the jurisdiction in the previous and subsequent suits
  • Res judicata serves to prevent multiplicity of suits and to ensure litigation comes to an end

Court orders

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  1. 1.The Preliminary Objection dated 29th September 2017 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioners

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 34
  • Land Disputes Tribunals Act (defunct)Section 3(1)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 155(3)(d)(ii) (as cited by Petitioners)
  • Constitution of KenyaArticle 152(2)(b) (as cited by Petitioners)
  • High Court Practice and Procedure Rules (LN No. 6 of 2006)Rule 22

Cases cited (6)

  • Benjoh Amalgamated Ltd and another vs. Kenya Commercial Bank Ltd
    [2008] 1 EA 29
  • Joseph Mwangi Theuri and 37 others vs. David Gitonga Githinji
    Nakuru ELC No. 238 of 2014
  • Hellen Murringe Kabutha vs. Nyandarua District Land Registrar and 5 Others
    Nakuru ELC No. 252 of 2013
  • Bernard Mugo Ndegwa vs James Nderitu Githae and 2 others
    [2010] eKLR
  • Mehuba Gellan Keil and 2 others vs. Abbdulkakir Shariff Abdiirim and 4 others
    [2015] KLR
  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA 696
Jurisdiction invoked
Article 165(3) of the Constitution (petition alleging constitutional violations; judgment itself cites Articles 40, 47 and 50 as the rights invoked)

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, "John Mwangi Kanyi & 2 others v Mary Wangui Waitathu & 2 others [2018] KEELC 4336 (KLR)", Case Analysis (2018). ELC Petition No 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4336/eng@2018-02-08

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