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ELCDismissedPetition dated 6th June, 2017· [2019] KEELC 3015 (KLR)

Abdillahi Kilyungi Ndunga v Attorney General & 2 others; Mutemi Ngonyi Munyoki (Interested Party) [2019] KEELC 3015 (KLR)

Environment and Land Court
31 May 2019
OAO.A. Angote
1,261 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 dismissed a land dispute petition because the same issues had already been decided, warning against re-litigating through constitutional petitions.

What this practically means

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Executive summary

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The Petitioner filed a Petition dated 6th June 2017 seeking a declaration that the proceedings and decision of the Kiomo Arbitration Board in Land Case No. 20 of 1996 violated his constitutional rights under Articles 40, 47, 50(1), 60, 64 and 159 of the Constitution, an order of certiorari to quash the Board's proceedings of 25th September 2000, and an order of mandamus directing the 3rd Respondent to cancel the title deed issued to the Interested Party over land known as Mwingi/Kiomo/447. His case was that the Land Adjudication Committee decided Land Case No. 53 of 1995 in his favour in March 1996, but the Arbitration Board overturned that decision in September 2000 without serving or notifying him, as he was out of the country. The Respondents and Interested Party opposed the Petition, arguing that the Petitioner had no demonstrable proprietary rights, that the claim was statute-barred, that it was res judicata, and that the issues should have been raised by way of a plaint. The court found that the Petitioner's proprietary interest had already been decided with finality when the trial magistrate in Mwingi SRMCC No. 31 of 2004 upheld a preliminary objection and struck out his suit on 18th April 2007, a ruling he never appealed. He then filed Machakos HCCC No. 104 of 2007 raising the same complaint of lack of service by the Arbitration Board, which was dismissed for want of prosecution without any attempt to revive or appeal. The court held that the Petition was both res judicata and an abuse of the court process, and that a litigant cannot hide behind a constitutional petition to circumvent due process. The Petition was dismissed with costs.

Key legal issues

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01

Whether the Petition is res judicata

Holding

The Petition is res judicata because the issue of the Petitioner's proprietary interest in the suit land was decided with finality when the lower court allowed the Defendant's Preliminary Objection in Mwingi SRMCC No. 31 of 2004, and the same issues were raised in Machakos HCCC No. 104 of 2007 which was dismissed for want of prosecution.

Reasoning

The trial magistrate struck out Mwingi SRMCC No. 31 of 2004 after upholding a preliminary objection that the plaintiff lacked legal or equitable right to the land. The Petitioner never appealed that ruling. He then filed Machakos HCCC No. 104 of 2007 on the identical ground that the Arbitration Board heard the appeal without serving him, and that suit was dismissed for want of prosecution without any attempt to revive or appeal. Raising the same issues in a constitutional petition is res judicata.

p. 2
02

Whether the Petition is an abuse of the court process

Holding

Filing suits in different courts raising the same issue amounts to an abuse of the court process which cannot be countenanced by the court.

Reasoning

The Petitioner filed Mwingi SRMCC No. 31 of 2004 (struck out), Machakos HCCC No. 104 of 2007 (dismissed for want of prosecution) and then the present Petition on the same issues concerning Mwingi/Kiomo/477. The court held that such serial litigation of the same dispute, cloaked as a constitutional petition, cannot be permitted and constitutes an abuse of process.

p. 2

Legal principles established

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  • A party cannot circumvent due process by re-litigating issues already raised in previous suits through a constitutional petition
  • Filing successive suits in different courts raising the same issue amounts to an abuse of the court process

Court orders

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  1. 1.The Petition dated 6th June, 2017 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 60
  • Constitution of Kenya, 2010Article 64
  • Constitution of Kenya, 2010Article 159
Jurisdiction invoked
Alleged violations of Articles 40, 47, 50(1), 60, 64 and 159 of the Constitution of Kenya, 2010

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, "Abdillahi Kilyungi Ndunga v Attorney General & 2 others; Mutemi Ngonyi Munyoki (Interested Party) [2019] KEELC 3015 (KLR)", Case Analysis (2019). Petition dated 6th June, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3015/eng@2019-05-31

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