John Maswili v Munywoki Kise & 3 others [2018] KEELC 4668 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land boundary suit because the same dispute had already been decided by a Land Disputes Tribunal years earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint dated 20th July, 2016 is res judicata
The plaint is res judicata because the boundary dispute between Nzaui/Mumbuni/210 and Nzaui/Kilili/610 was heard and determined by the Makueni Land Disputes Tribunal in Case No. 26 of 2004, whose award was adopted as judgment of the Makueni Senior Resident Magistrate's Court in LDTC No. 39 of 2006, and the judicial review challenge (Misc. Civil Application No. 257 of 2006) was dismissed on 30th July, 2012, leaving that judgment unchallenged. The parties were the same or claimed under the same title, and the Tribunal had jurisdiction under section 3 of the Land Disputes Tribunal Act.
The court applied the five-part test in Bernard Mugo Ndegwa v James Nderito Githae. The plaintiff and first defendant were parties in the Tribunal case and judicial review proceedings; the 2nd to 4th defendants are the first defendant's sons. The subject matter was the same boundary dispute. The Tribunal had statutory jurisdiction over boundary and trespass claims, and the jurisdictional challenge was determined and dismissed in the High Court judicial review. The award was adopted as judgment of a competent court and never appealed against.
Timing of a res judicata objection
A preliminary objection on res judicata may be raised at any time, notwithstanding that it was not raised in the defence.
The plaintiff argued that the defence and replying affidavit never raised res judicata. The court held that section 7 is a bar that a party may invoke at any stage, and the defendants' late raising of the objection did not defeat it.
Jurisdiction of the Land Disputes Tribunal over the boundary dispute
The Land Disputes Tribunal had jurisdiction under section 3 of the Land Disputes Tribunal Act over boundary determination, claims to occupy or work land, and trespass to land.
Section 3 of the repealed Land Disputes Tribunal Act conferred jurisdiction on Tribunals over civil disputes concerning division or determination of boundaries to land, claims to occupy or work land, and trespass to land. The claims before the Tribunal in Case No. 26 of 2004 fell squarely within these heads. Any jurisdictional challenge was raised and rejected in the judicial review proceedings, which were dismissed on 30th July, 2012.
Rectification of register and adoption of surveyor's report
Both prayers refused: rectification was not grounded in the defence, and with the suit found res judicata, striking out was the only recourse; adoption of the surveyor's report was equally refused.
Having struck out the plaint as res judicata, the court found the defendants' rectification prayer unsupported by their defence and the plaintiff's application to adopt the surveyor's report moot. The court noted that both parties contributed to the fourteen-year delay in implementing the LDTC judgment and therefore ordered each party to bear its own costs.
Legal principles established
#- A preliminary objection on res judicata under section 7 of the Civil Procedure Act may be raised at any stage of the proceedings, even if not raised in the defence.
- Res judicata does not apply where the former suit was heard by a court or tribunal lacking jurisdiction.
Court orders
#- 1.The plaint dated 20th July, 2016 struck out for being res judicata
- 2.All orders issued in the suit set aside and/or discharged in terms of prayer 1 of the defendants' application dated 29th August, 2017
- 3.The plaintiff's application dated 19th September, 2017 (to adopt the surveyor's report dated 9/5/2017) dismissed
- 4.Prayer 2 of the defendants' application (rectification of register and map) not granted
- 5.Each party to bear his own costs
- 6.The ruling to apply to ELC 190 of 2017
- Jurisdiction invoked
- Articles 1A, 1B, 3A and 7 of the Civil Procedure Act (Cap 21) and Order 40 rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Maswili v Munywoki Kise & 3 others [2018] KEELC 4668 (KLR)", Case Analysis (2018). ELC Case of 2016 (with Notice of Motion dated 29th August, 2017 and Notice of Motion dated 19th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4668/eng@2018-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.