Tom Lukuru Ojwang v Attorney General & 7 others [2018] KEELC 4782 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed a landowner's bid to recover his title because he had already lost the same fight in earlier cases and never appealed.
What this practically means
#Executive summary
#Key legal issues
#Competence of the constitutional petition
The petition was incompetent because it did not set out with reasonable precision the provisions infringed and the manner of infringement, and no specific order of quashing was prayed
Applying Anarita Karimi Njeru, a petitioner must plead with precision the provisions said to be infringed and how. The court rejected the petitioner's submission that Anarita Karimi Njeru is bad law, holding it remains good authority. The petition also lacked a specific prayer for quashing the adopted tribunal award.
Res judicata
The petition was barred by res judicata, the same issues having been determined in Kakamega CMCC Award No. 73 of 2004 and Succession Cause No. 572 of 2008
The tribunal award was adopted as judgment in 2006 and the petitioner never appealed or sought judicial review. In succession proceedings he was given 90 days to challenge the title but failed to prosecute his objection, after which the land vested in the respondents. The doctrine applies to every point that could properly have been raised, and applies to constitutional petitions.
Jurisdiction of the Land Disputes Tribunal over registered and titled land
The court accepted the parties' rival submissions but did not need to decide this finally in the petitioner's favour given the res judicata finding
The petitioner argued the tribunal lacked jurisdiction to cancel registered titles and to find fraud, citing Wepukhulu and Abiero; the 1st and 2nd respondents relied on section 159 of the Registered Land Act and the Kirinyaga ex parte Kariuki decision contending the tribunal had jurisdiction over all land. The court's dismissal rested on competence and res judicata rather than a definitive ruling on tribunal jurisdiction.
Retrospectivity of the Constitution of Kenya 2010
The constitution is not retrospective and cannot invalidate acts legal under the former constitution; the acts complained of pre-dated 27th August 2010
Relying on Macharia v KCB, Waga v AG and E.T. v AG, the respondents argued the events of 2004-2006 were governed by the former legal regime and the 2010 Constitution could not be applied retroactively to them, a position the court accepted in the context of its overall dismissal.
Legal principles established
#- The plea of res judicata applies not only to points actually decided but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward
- The constitution cannot be used as a cover to re-open closed matters; res judicata applies to enforcement of fundamental rights and freedoms proceedings
Court orders
#- 1.The petition is dismissed
- 2.Costs of the petition awarded to the respondents
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution of Kenya 2010; Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Lukuru Ojwang v Attorney General & 7 others [2018] KEELC 4782 (KLR)", Case Analysis (2018). ELC Petition No. 22 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4782/eng@2018-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.