Sisters of Notre Dame De Namur Registered Trustees v National Land Commission & 2 others; Ethics and Anti-Corruption Commission(Interested Party) [2019] KEELC 4000 (KLR)

The court compared the pleadings in both petitions and found the same suit property (Kisumu Municipality/Block 12/124 and House No. KISU/HOU/HG/80) and the same central issue of ownership had been litigated and decided on 29th May 2014. Although the National Land Commission and Chief Land Registrar were not parties to the earlier petition, the question of ownership was decided against the Petitioner, and Section 7 of the Civil Procedure Act bars re-litigation of the same issue.

The court adopted the findings in Petition No. 30 of 2012, in which Kaniaru J found that Justin Kimutai Sirma's lease was a forgery, that the transaction was fraudulent (with a Land Registrar benefitting from the purchase money), and that the property was government land never available for alienation. Those findings bind the Petitioner until changed by a higher court.

Since the Petitioner acquired no good title, its constitutional claim of arbitrary deprivation under Article 40 and violation of fair administrative action under Article 47 fails. The gazettement by the National Land Commission merely regularised ownership in conformity with the existing judgment and could not constitute a wrong against the Petitioner.

Although the Petitioner deponed that interim stay orders had been extended, no extracted order or ruling was produced. Applying Section 107 of the Evidence Act, the court held the Petitioner failed to discharge its evidential burden, so the 2014 judgment stands unstayed.