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ELCStruck OutNot stated in the judgment (constitutional petition, Makueni)· [2019] KEELC 3611 (KLR)

Julius Nguli Loli & 2 others v Muoka Yulu & 2 others [2019] KEELC 3611 (KLR)

Environment and Land Court of Kenya (constitutional petition jurisdiction) at Makueni
3 May 2019
1,793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Makueni land petition was struck out because the same dispute had already been decided decades earlier, so the Constitution gave no second chance.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Makueni (Mbogo C. G., J) determined a Notice of Preliminary Objection dated 9th July 2018 raised by the 1st Respondent against the Petitioners' constitutional petition concerning plots Nos. 923 and 925 at Ikalyoni Land Adjudication Section, Makueni County. The 1st Respondent argued that judicial review orders (certiorari, prohibition, mandamus) could only be sought through Order 53 and Section 8 of the Law Reform Act within six months, that the petition was res judicata under Section 7 of the Civil Procedure Act because the Petitioners' fathers or relatives had litigated and lost the same subject matter in prior suits, that the 2010 Constitution conferred no new lease of life on pre-2010 concluded disputes, and that Section 30 of the Land Adjudication Act required consent of the Adjudication Officer. The Petitioners countered, citing Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, that the objection was not a pure point of law since res judicata required proof of facts under Section 107 of the Evidence Act. The court held that Article 23 of the Constitution prescribes no time limit and that the Constitution is forward and backward looking, rejecting the limitation argument. However, the petition's own admission of Kilungu DMCC No. 167/1973, Civil Appeal No. 119/1976, and HCCA No. 186 of 1981 (abated in 1997) established res judicata. The petition was struck out with costs to the 1st Respondent.

Key legal issues

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01

Whether the petition is res judicata

Holding

Yes. The subject matter was litigated in Kilungu DMCC No. 167/1973, Civil Appeal No. 119/1976 and HCCA No. 186 of 1981 (abated 1997), and the Petitioners claim under those litigants; Section 7 of the Civil Procedure Act bars the petition.

Reasoning

The court found from the petition's own paragraphs that three prior suits over the same subject matter had been determined or had abated, and that the Petitioners were represented by their fathers or relatives, who litigated under the same title. The 2010 Constitution is not retrospective and conferred no new lease of life on concluded disputes. The court agreed with the 1st Respondent that the petition was res judicata and struck it out with costs.

p. 3
02

Whether the prayers sought are time-barred under Order 53 and the Law Reform Act

Holding

No time limit applies; Article 23 of the Constitution prescribes no limitation period for filing a petition, and the Constitution is forward and backward looking.

Reasoning

The court rejected the 1st Respondent's argument that certiorari, prohibition and mandamus could only be sought by judicial review within six months under Order 53 of the Civil Procedure Rules and Section 8 of the Law Reform Act. It held that Article 23 of the Constitution contains no time limit, and that the Constitution is not subject to ordinary statutory limitation, so filing the petition was within the Petitioners' rights on that point.

p. 3
03

Whether the Preliminary Objection is a pure point of law

Holding

The objection proceeded as one on res judicata, which the court found established; the Petitioners' argument under Mukisa Biscuits that evidence was needed did not prevail.

Reasoning

The Petitioners argued, citing Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, that a preliminary objection must raise a pure point of law and that res judicata required proof of facts under Section 107 of the Evidence Act. The court nevertheless found res judicata established on the face of the petition itself, which disclosed the prior suits, and struck out the petition.

p. 3

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act applies where parties claim under parties (fathers/relatives) under whom they claim, litigating under the same title
  • The Constitution of 2010 did not give parties who lost suits before 2010, or their relatives, a fresh right to litigate concluded disputes

Court orders

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  1. 1.The petition is struck out
  2. 2.Costs to the 1st Respondent

Authorities

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Legislation

  • Law Reform ActSection 8
  • Civil Procedure RulesOrder 53 Rule 1
  • Civil Procedure ActSection 7
  • Land Adjudication Act (Cap 289 Laws of Kenya)Section 30(1), (2), (3) and (4)
  • Evidence ActSection 107
  • Constitution of Kenya, 2010Article 23

Cases cited (1)

  • Mukisa Biscuits Manufacturing Company Ltd. Vs. West End Distributors Ltd. (1969) EA 696
    (1969) EA 696
Jurisdiction invoked
Constitution of Kenya, 2010, Article 23 (as grounded by the Petitioners)

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, "Julius Nguli Loli & 2 others v Muoka Yulu & 2 others [2019] KEELC 3611 (KLR)", Case Analysis (2019). Not stated in the judgment (constitutional petition, Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3611/eng@2019-05-03

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