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ELCStruck OutPetition dated 29th June, 2017 (Machakos)· [2019] KEELC 1381 (KLR)

Herman Mwaniki Kamau & another v Katelembo Athiani Muputi Farming & Ranching Co-operative Society Ltd & 3 others [2019] KEELC 1381 (KLR)

Environment and Land Court
4 October 2019
OAO.A. Angote
1,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land petition as duplicate, confirming consent orders don't bind people who weren't parties.

What this practically means

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Executive summary

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The Petitioners, registered owners of Athi River/Athi River Block 1/98 purchased from Francis Mutuku Muia, a member of the 1st Respondent, sought declarations that the land belonged to them, that the 2nd Respondent's admission in Co-operative Tribunal Case No. 533 of 2012 was unconstitutional, and that their right to a fair hearing had been violated, together with an order of certiorari to quash the Tribunal's proceedings and consent orders. They were not parties to the Tribunal case, in which a consent judgment was entered on 4th March 2014, and their application to set it aside was dismissed on jurisdictional grounds. The 3rd and 4th Respondents opposed the Petition on grounds that it disclosed no cause of action against them, was sub-judice Machakos ELC. Case No. 390 of 2016, and was an abuse of court process. The 1st and 2nd Respondents did not oppose. The court found that ownership of the suit land as between the Petitioners and the 2nd Respondent would be conclusively determined in the pending ELC suit, in which the Petitioners had already filed a joint Defence raising the same issues. It further held that since the Petitioners were not parties to the consent order, that order was not binding on them or the court, and as it did not determine ownership between them and the 2nd Respondent, quashing it served no purpose. The Petition dated 29th June 2017 was struck out with no order as to costs.

Key legal issues

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01

Sub-judice

Holding

The Petition was struck out as sub-judice the pending ELC suit

Reasoning

The Petitioners had filed a joint Defence in ELC. No. 390 of 2016 raising the same issues they raised in the Petition. Ownership of the suit land as between the Petitioners and the 2nd Respondent would be conclusively determined in that suit, leaving no purpose for the Petition.

p. 2
02

Effect of consent order on non-parties

Holding

The consent order in the Tribunal case does not bind the Petitioners or the court

Reasoning

The Petitioners were not parties to the consent judgment in CTC No. 533 of 2012, and the consent order did not determine the issue of ownership of the land as between them and the 2nd Respondent. Quashing it for want of hearing was therefore unnecessary.

p. 2

Legal principles established

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  • A consent order in a suit to which a party was not joined is not binding on that party or the court
  • A petition over the same subject matter as a pending suit between the same parties is sub-judice and an abuse of process

Court orders

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  1. 1.The Petition dated 29th June, 2017 is struck out but with no order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 40(1)
Jurisdiction invoked
not stated; original constitutional petition jurisdiction of the Environment and Land Court

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, "Herman Mwaniki Kamau & another v Katelembo Athiani Muputi Farming & Ranching Co-operative Society Ltd & 3 others [2019] KEELC 1381 (KLR)", Case Analysis (2019). Petition dated 29th June, 2017 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1381/eng@2019-10-04

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