Julius Nguli Loli & 2 others v Muoka Yulu & 2 others [2019] KEELC 3611 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition is res judicata
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.
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.
Whether the prayers sought are time-barred under Order 53 and the Law Reform Act
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.
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.
Whether the Preliminary Objection is a pure point of law
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.
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.
Legal principles established
#- 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
#- 1.The petition is struck out
- 2.Costs to the 1st Respondent
- Jurisdiction invoked
- Constitution of Kenya, 2010, Article 23 (as grounded by the Petitioners)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.