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ELCDismissedELC Petition No. 22 of 2016· [2018] KEELC 4782 (KLR)

Tom Lukuru Ojwang v Attorney General & 7 others [2018] KEELC 4782 (KLR)

Environment and Land Court
24 January 2018
5,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner sought enforcement of his rights under Articles 22, 40 and related provisions, asking for fair administrative justice, restoration of his title to L.R. No. North Wanga/Kholera/588, damages and quashing of the Matungu Land Disputes Tribunal decision of 6th September 2004, which had been adopted as Kakamega CMCC Award No. 73 of 2004 and implemented by the Land Registrar. The land, sold in a 1978 statutory power of sale by Kenya Commercial Bank and bought by the petitioner's deceased father, was restored by the tribunal award to the 3rd to 8th respondents' deceased father and later vested in them through Succession Cause No. 572 of 2008, in which the petitioner's objection was not prosecuted. The 1st and 2nd respondents raised a preliminary objection on pleading deficiency under Anarita Karimi Njeru; the 3rd to 8th respondents argued res judicata, non-retroactivity of the 2010 Constitution and laches. The court framed five issues, held the petition incompetent for lack of precision and for absence of a specific quashing prayer, rejected the attack on Anarita Karimi Njeru as bad law, and found the petition res judicata since the petitioner never appealed the tribunal award or the succession ruling, having been given 90 days by Judge Chitembwe to challenge the title. It held the 2010 Constitution is not retrospective. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Competence of the constitutional petition

Holding

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

Reasoning

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.

p. 5
02

Res judicata

Holding

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

Reasoning

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.

p. 9
03

Jurisdiction of the Land Disputes Tribunal over registered and titled land

Holding

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

Reasoning

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.

p. 9
04

Retrospectivity of the Constitution of Kenya 2010

Holding

The constitution is not retrospective and cannot invalidate acts legal under the former constitution; the acts complained of pre-dated 27th August 2010

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 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

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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, "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.