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ELCDismissedChuka ELC Case No. 13 of 2019 (consolidated with Chuka ELC Miscellaneous Application No. 3 of 2019)· [2019] KEELC 1961 (KLR)

William Mutuura Kairiba v Samuel Nkari & 4 others [2019] KEELC 1961 (KLR)

Environment and Land Court
31 July 2019
6,652 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a landowner's second suit because he re-litigated an already-decided dispute instead of using statutory land adjudication remedies.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka (P. M. Njoroge, J) determines preliminary objections by the 1st to 4th defendants to the plaintiff's suit (ELC No. 13 of 2019, consolidated with ELC Miscellaneous Application No. 3 of 2019) claiming ownership of Mukothima 'A' Adjudication Section Gikingo Location P/No. 150 and seeking declaratory, permanent and mandatory injunctive relief against alleged trespass, encroachment and unlawful allocation by the County Government of Tharaka Nithi. The objection raised three grounds: res judicata of Chuka ELC No. 8 of 2018 between the same parties over the same land; failure to exhaust the dispute-resolution mechanisms in the Land Consolidation Act and the Land Adjudication Act; and defectiveness of the application dated 19th June 2019. The plaintiff argued the earlier suit was dismissed on a technicality (lack of the Land Adjudication Officer's consent) and therefore not on the merits, and that he had since obtained consent to sue. The court held that the earlier suit was dismissed in totality, not struck out, that adding the 4th and 5th defendants did not defeat res judicata, and that the plaintiff had failed to exhaust the statutory adjudication remedies. The court upheld grounds 1 and 2 of the preliminary objection, found the application fatally defective, dismissed both the suit and the consolidated miscellaneous application, vacated the interim orders (prayers 2 and 5) granted ex parte on 25th June 2019, and awarded costs to the defendants/respondents.

Key legal issues

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01

Whether the suit is res judicata the earlier Chuka ELC No. 8 of 2018

Holding

Yes - the earlier suit, involving the same plaintiff and subject matter (save for the added 4th and 5th defendants), was dismissed in totality on 12th November 2018, so the present suit is barred

Reasoning

The court compared the parties and issues in both suits and found them identical apart from the addition of the 4th and 5th defendants. It reasoned that adding litigants cannot defeat res judicata, that the earlier suit was dismissed (not struck out) with costs, and that litigation must come to an end and cannot be conducted in installments.

p. 10
02

Whether failure to exhaust remedies under the Land Adjudication Act and Land Consolidation Act bars the suit

Holding

Yes - ground 2 of the preliminary objection was upheld; the plaintiff was required to pursue the committee, Arbitration Board, objection and ministerial appeal mechanisms before coming to court

Reasoning

The court accepted the defendants' submission that the dispute falls within an ongoing adjudication section and that the plaintiff did not use the mechanisms in sections 13, 14 and 26 of the Land Consolidation Act and sections 26 and 29 of the Land Adjudication Act. It found the plaintiff opted for a shortcut unknown in law.

p. 10
03

Whether the application dated 19th June 2019 (served as post-dated 19th July 2019) is fatally defective

Holding

Yes - having upheld grounds 1 and 2, the court found the application fatally defective as urged by the 1st to 4th defendants

Reasoning

The 1st to 4th defendants argued that the application as served was post-dated 19th July 2019 though filed on 25th June 2019, making the supporting affidavit a perjury and its contents lies; they urged striking out and discharge of interim orders. The court, having upheld the first two grounds, agreed the application was fatally defective.

p. 10

Legal principles established

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  • Adding new litigants to a fresh suit does not obviate the doctrine of res judicata where parties and issues otherwise coincide
  • A suit dismissed in totality on a preliminary objection (not merely struck out) can found a plea of res judicata; and failure to exhaust statutory dispute-resolution mechanisms under the Land Adjudication Act and Land Consolidation Act ousts the court's jurisdiction

Court orders

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  1. 1.Chuka ELC suit No. 13 of 2019 is hereby dismissed
  2. 2.Chuka Miscellaneous Application No. 3 of 2019 is hereby dismissed
  3. 3.Orders granting prayers 2 and 5 granted in Chuka Miscellaneous Application No. 3 of 2019 are vacated and the application dated 19th June 2019 is dismissed
  4. 4.Costs in Chuka ELC No. 13 of 2019 and in Chuka Miscellaneous No. 3 of 2019 are awarded to the defendants/respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 3B and 7
  • Civil Procedure RulesOrder 40(1)(a)
  • Land Consolidation ActSections 13, 14, 26 and 11(2)
  • Land Adjudication ActSections 5, 11, 26(1) and (2), 29 and 30
  • Constitution of KenyaArticle 159 and Article 159(2)(d)

Cases cited (10)

  • Ransa Co. Ltd & 2 Others v Manca Francesco
    Malindi Court of Appeal Civil Appeal No. 46 of 2014 (2015) eKLR
  • Hunker Trading Company Limited v Elf Oil Kenya Limited
    Nairobi Civil Appl. No. 6 of 2010 (2010) eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Saifudeen Abdulla Bhai & Hussein Abdulla Bhai v Zainabu Mwinyi
    (2014) eKLR
  • M W K v A M W
    [2016] eKLR
  • Nancy Mwangi T/A Worthlin Marketers v Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 others
    [2014] eKLR
  • Kamunye & others v Pioneer General Assurance Society Ltd
    [1971] E.A. 263
  • The Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Ltd
    [2005] KLR 97; LLR CAK 6880
  • Stanley Lezen Mliwa v Leonard Kapala Makangalu & 2 others
  • Mukisa Biscuits Manufacturing Co. v West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); the judgment itself does not expressly state the jurisdictional provision

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, "William Mutuura Kairiba v Samuel Nkari & 4 others [2019] KEELC 1961 (KLR)", Case Analysis (2019). Chuka ELC Case No. 13 of 2019 (consolidated with Chuka ELC Miscellaneous Application No. 3 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1961/eng@2019-07-31

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