Mary Muthoni Maina v Josphat Murage Miano & another [2018] KEELC 4416 (KLR)
The bottom line
#The Environment and Land Court struck out an adverse possession suit because the same family land dispute had already been finally decided in a 1987 case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata
The suit is res judicata; the same land was litigated and finally determined in NYERI H.C.C.C No. 154 of 1987 (OS), in which the plaintiff's son was the 2nd plaintiff and the plaintiff testified as PW3, sharing a common interest in the suit land, and no appeal was filed against that dismissal
Applying Section 7 of the Civil Procedure Act and Explanation 6 thereof, the court found the four ingredients of res judicata satisfied: the matter directly and substantially in issue, same parties or privies claiming under the same title, the former suit heard and finally decided by a competent court. The plaintiff was a witness for her son in the former suit, both claiming the same land through MAINA MIANO who lived on it since 1965, so she is deemed to claim under him.
Whether the Notice of Motion dated 13th July 2016 survives once the suit is res judicata
The application is moot and must be struck out along with the suit
Since the suit itself is barred by res judicata, there is no justiciable matter in which the court can consider the application to review the Chief Magistrate's ruling or consolidate the suits. The application cannot stand independently of the suit and suffers the same fate.
Whether the ELC can review the Chief Magistrate's orders under Article 165(6) and (7)
Review of subordinate court orders is for the subordinate court under Order 45; a superior court may intervene only through certiorari
The court held that Article 165(6) and (7) supervisory jurisdiction over subordinate courts is exercised by way of judicial review (certiorari) to quash orders, not by 'review' as sought. The plaintiff also failed to prove lack of jurisdiction on the part of the Chief Magistrate, the burden of proving that lying on the party alleging it.
Reliance on Section 13(5) of the Environment and Land Court Act
The provision invoked by plaintiff's counsel was deleted by Act No. 12 of 2012 and could not assist the plaintiff
Counsel urged the court to invoke Section 13(5) of the Environment and Land Court Act, but the court noted the section had been deleted and that in any event no evidence established the Chief Magistrate's lack of jurisdiction.
Legal principles established
#- A person need not be formally enjoined in a former suit; a person with a common interest in the subject matter is deemed to claim under the person litigating, and res judicata applies to privies
- The burden of proving lack of jurisdiction lies on the party alleging it
- Review of a subordinate court's orders lies in that subordinate court under Order 45; a superior court's supervisory power under Article 165(6) and (7) is exercised through certiorari
Court orders
#- 1.This suit is struck out for being res judicata
- 2.The plaintiff's Notice of Motion dated 13th July 2016 is struck out
- 3.The defendants are awarded costs of the suit and the application
- 4.All previous orders issued pursuant to the plaintiff's Notice of Motion dated 14th April 2016 are vacated, including the order issued on 10th July 2017 consolidating this suit and KERUGOYA CMCC No. 47 of 2016
- Jurisdiction invoked
- Article 165(6) and (7) of the Constitution; Sections 5, 6, 7 and 18 of the Civil Procedure Act; Order 3 Rule 5 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Muthoni Maina v Josphat Murage Miano & another [2018] KEELC 4416 (KLR)", Case Analysis (2018). KERUGOYA ELC (unspecified) — Notice of Motion dated 13th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4416/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.