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ELCStruck OutELC Petition No. 1 of 2016· [2019] KEELC 1641 (KLR)

David Lubanga Maleya v Japheth Musasa Libese & another; Ernest Chavasu (Interested Party) [2019] KEELC 1641 (KLR)

Environment and Land Court
24 September 2019
2,355 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a landowner's constitutional petition because he had already litigated the same land dispute and lost multiple times since 2003.

What this practically means

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Executive summary

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The petitioner, registered proprietor of North Maragoli/Chavakali/681 since 1974 through succession to his father, petitioned the Environment and Land Court at Kakamega seeking declarations that the Sabatia Land Disputes Tribunal and the Kakamega Provincial Land Disputes Appeals Committee were illegally composed and lacked jurisdiction over the respondent's claim to half the land, that all resulting proceedings before the tribunals and the Magistrate's Court were null and void, and that costs be borne by the respondent. He alleged violations of Articles 40, 22 and 258 of the Constitution, arguing the tribunal lacked jurisdiction over title to land, that the respondent lacked locus standi, that the claim dating to 1959 was time barred, and that succession proceedings ousted the tribunals' jurisdiction. The respondent countered that a 1958 family partnership arrangement gave his father half the plot; that the tribunal ruled in his favour in 2003; that the petitioner appealed and lost; that the award was adopted by the Senior Resident Magistrate's Court at Vihiga in 2009; that a decree issued in 2012; that the petitioner's 2015 review application was dismissed; and that a prior ELC suit was withdrawn, making the petitioner vexatious. The court framed res judicata as the preliminary issue, applied sections 6 and 7 of the Civil Procedure Act, found the parties and subject matter identical to the earlier determinations, declined to consider the merits, and struck out the petition with costs, branding the petitioner vexatious.

Key legal issues

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01

Whether the constitutional petition is res judicata

Holding

The petition is res judicata because the same parties and subject matter were determined in Vihiga SPM Misc. Application No. 34 of 2003, a review application was dismissed on 13th October 2015, and Kakamega ELC No. 158 of 2014 was withdrawn

Reasoning

The court applied sections 6 and 7 of the Civil Procedure Act, Cap 21, quoting them in full. Having perused the court records, it found the tribunal decision had been adopted by the Senior Resident Magistrate's Court, the petitioner's review application had been dismissed for want of merit, and a prior ELC suit had been withdrawn. Since the parties and subject matter were the same, the court declined to enter into the merits of the constitutional claims.

p. 3
02

Whether the petitioner is a vexatious litigant

Holding

The court found the petitioner vexatious for repeatedly filing cases on the same subject matter

Reasoning

The respondent had shown a history of litigation by the petitioner dating from 2003, including the tribunal proceedings, the appeal, the adoption proceedings, a review application and a prior ELC suit which was withdrawn. The court concluded that the petitioner 'has always sought refuge in the courts of law but he has never been successful' and that the petition was not merited, warranting striking out with costs.

p. 3

Legal principles established

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  • A suit whose matter was directly and substantially in issue in previously determined proceedings between the same parties is res judicata under sections 6 and 7 of the Civil Procedure Act
  • A litigant who persistently files numerous cases on the same subject matter is vexatious and does not merit relief

Court orders

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  1. 1.The petition is struck out
  2. 2.Costs of the petition awarded (against the petitioner)
Jurisdiction invoked
Articles 22, 40 and 258 of the Constitution of Kenya, 2010 (petition alleging violation of constitutional rights)

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, "David Lubanga Maleya v Japheth Musasa Libese & another; Ernest Chavasu (Interested Party) [2019] KEELC 1641 (KLR)", Case Analysis (2019). ELC Petition No. 1 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1641/eng@2019-09-24

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