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ELCStruck OutELC Petition No. 1 of 2019· [2019] KEELC 275 (KLR)

Beatrice Aviona & another v Principal Magistrate – Vihiga & 3 others [2019] KEELC 275 (KLR)

Environment and Land Court
27 November 2019
NMN.A. Matheka
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land dispute petition because the same issue had already been decided, ruling the correct route was appeal, not a fresh petition.

What this practically means

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Executive summary

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The petitioners, joint registered owners of land parcel Kakamega/Lugovo/1775, petitioned the Environment and Land Court at Kakamega seeking declarations that the Vihiga Land Disputes Tribunal's award of 30th January 2006 was made without jurisdiction and null and void, that their rights to be heard and to property under Articles 40 and 47 of the Constitution were violated, and that the gazette notice de-gazetting their title was null and void ab initio. They contended they were never parties to the tribunal proceedings, that the tribunal lacked jurisdiction to deal with contract issues or order deregistration of land, and that the decree adopted in Vihiga SPM Misc. Case No. 19 of 2006 was non-executable. The 2nd respondent maintained he purchased a portion of Kakamega/Lugovo/340 in 1991, obtained a tribunal award in his favour in claim V/LTD/13B/2005, had it adopted on 21st November 2006, and that the petitioners' earlier suits, including ELC 32 of 2014 and an application in ELC 154 of 2018 (formerly Misc. Application 19 of 2006), were dismissed. The court identified whether the petition was res judicata as the preliminary issue, applying the Mukisa Biscuit and Oraro v Mbajja formulations and sections 6 and 7 of the Civil Procedure Act. Finding the same parties and subject matter had been dealt with in ELC 154 of 2018, where the application was dismissed, the court held the petitioners' remedy was appeal, not a fresh petition. The petition was struck out with costs to the respondents.

Key legal issues

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01

Res judicata as a preliminary objection

Holding

The petition is res judicata Kakamega ELC No. 154 of 2018, in which the same parties and subject matter were already dealt with and the application dismissed

Reasoning

The court applied sections 6 and 7 of the Civil Procedure Act, finding the ruling in ELC 154 of 2018 dismissed the same application by the same parties over the same subject matter. Raising the same matters afresh by way of constitutional petition was an improper route around the prior decision; the remedy was appeal.

p. 3
02

Whether the Land Disputes Tribunal had jurisdiction

Holding

The court did not reach the merits; the jurisdictional challenge to the tribunal's award was left undetermined

Reasoning

Although the petitioners argued the tribunal exceeded its statutory jurisdiction under section 3(1) of the repealed Land Disputes Tribunal Act, the court held the preliminary objection on res judicata had to be determined first and dispositive, so the merits were never addressed.

p. 2

Legal principles established

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  • A preliminary objection raising res judicata is a pure point of law properly determined before the merits
  • A party aggrieved by a decision must appeal rather than abandon the matter and file a fresh suit by way of petition

Court orders

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  1. 1.The petition is struck off with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 20, 21, 22, 23, 40, 47
  • Land Disputes Tribunal Act (repealed)section 3(1)
  • Land Control Actsections 6 and 8
  • Civil Procedure Act Cap 21sections 6, 7 and 7(2)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    [2005] e KLR
Jurisdiction invoked
Articles 20, 21, 22 and 23 of the Constitution (enforcement of Bill of Rights) read with section 7(2) of the Civil Procedure Act

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, "Beatrice Aviona & another v Principal Magistrate – Vihiga & 3 others [2019] KEELC 275 (KLR)", Case Analysis (2019). ELC Petition No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/275/eng@2019-11-27

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