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ELCDismissedNarok ELC Petition filed 19 December 2018· [2019] KEELC 2726 (KLR)

Joyce Shangui Kibe & 7 others v Jeremiah Parkirito & 6 others [2019] KEELC 2726 (KLR)

Environment and Land Court of Kenya
2 July 2019
MKMohammed Noor Kullow
2,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land petition because the dispute had already been decided years earlier, warning that choosing the wrong court procedure can end a case instantly.

What this practically means

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Executive summary

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The petitioners filed a petition on 19 December 2018 seeking declaratory and judicial review orders (certiorari and mandamus) and compensation arising from the revocation of their title deeds to parcels Cis Mara/Olopusimoru/299, 472, 499 and 500, which were reissued to the 1st to 4th respondents following proceedings before the Olokurto Land Tribunal adopted by the Narok Chief Magistrate's court in Narok Misc. Land Case No. 15 of 2002. The petitioners alleged violations of Articles 40(3) and 47, including revocation pursuant to an ultra vires order, issuance of a decree against persons not party to the case, lack of service of the tribunal decision, and orders varying the decree and tribunal decision. The respondents raised a preliminary objection contending that the petition was a judicial review application disguised as a constitutional petition, was res judicata, circumvented the Limitation of Actions Act, sought to have the court determine competing private claims to land which required a full trial, and was an abuse of process. The court framed two issues: whether constitutional breaches were proved and whether the petition was res judicata. Applying section 7 of the Civil Procedure Act, the court held the issues had been litigated before the Land Disputes Tribunal and adopted by the Narok Magistrate court, so the petitioners' remedy was an appeal. It further held the prayer for certiorari and mandamus could only be litigated by way of a judicial review application, not a petition, and that the petitioners had not pleaded breaches with precision. The preliminary objection was upheld and the petition dismissed with costs to the respondents.

Key legal issues

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01

Whether the petition is res judicata

Holding

The petition is res judicata as the issues were litigated before the Olokurto Land Disputes Tribunal and adopted by the Narok Chief Magistrate's court; the petitioners ought to have appealed

Reasoning

The court found the prayers in the petition related to matters previously litigated at the Lands Disputes Tribunal and later adopted by the Narok Magistrate court. The proper remedy against the tribunal decision as adopted was an appeal, not a fresh constitutional petition. The doctrine of res judicata under section 7 of the Civil Procedure Act therefore barred the suit.

p. 3
02

Whether the petition sufficiently pleaded constitutional breaches and raised constitutional issues

Holding

It did not; the petition challenged judicial and administrative acts for which the recourse was appeal or judicial review, not a rights petition

Reasoning

The court held that the petition faulted the Chief Magistrate Narok in the discharge of a judicial function, for which the only recourse was an appeal, and the Land Registrar who acted on orders of a competent court. The prayers sought were in substance judicial review remedies requiring leave, improperly brought as a constitutional petition.

p. 3

Legal principles established

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  • A preliminary objection, if sustained, may conclusively determine the matter without further hearing
  • Section 7 of the Civil Procedure Act anchors the doctrine of res judicata; matters previously litigated before a Land Disputes Tribunal and adopted by a magistrate's court cannot be relitigated by way of petition

Court orders

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  1. 1.The preliminary objection is upheld/allowed
  2. 2.The petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 40(3)(a) and (b)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 22
  • Civil Procedure ActSection 7
  • Limitation of Actions Act
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 4

Cases cited (3)

  • Re Mumo Matemu versus Trusted Society of Human Rights Alliance
  • Re Annarita Karimi Njeru
  • East Africa Pentecostal Churches registered trustees and 175 others
On appeal from
Narok Chief Magistrate's Court (adoption of Olokurto Land Tribunal decision)
Narok Misc. Land Case No. 15 of 2002
Jurisdiction invoked
Constitution of Kenya, Article 22 (enforcement of Bill of Rights) read with Articles 40 and 47; petition dismissed on preliminary objection

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, "Joyce Shangui Kibe & 7 others v Jeremiah Parkirito & 6 others [2019] KEELC 2726 (KLR)", Case Analysis (2019). Narok ELC Petition filed 19 December 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2726/eng@2019-07-02

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