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ELCDismissedELC No. 247 of 2013· [2019] KEELC 4310 (KLR)

Gitathuru Kariobangi Company Limited v Kariuki Gathecha Resources Limited [2019] KEELC 4310 (KLR)

Environment and Land Court
18 February 2019
1,067 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company that bought Nairobi land in 1979 without land control board consent lost everything—the Court's final decision on the void sale couldn't be reopened through a constitutional petition.

What this practically means

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Executive summary

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Gitathuru Kariobangi Company Limited petitioned the Environment and Land Court at Nairobi, alleging that Kariuki Gathecha Resources Limited's refusal to complete the conveyance of L.R No. Nairobi/Block 31/33 (58 acres carved from L.R No. 31 Ruaraka/Nairobi) violated its rights under Articles 19, 22 and 40(1) and (2) of the Constitution. The Petitioner claimed to have bought 34 acres in March 1979 and 24 acres in December 1979, taking possession under sale agreements and a power of attorney. It sought declarations, an order compelling transfer of the land, or alternatively that it be deemed to have acquired the property by operation of law, plus a permanent injunction. The Respondent entered appearance but filed no response and did not participate in the hearing. The court found the petition barred by res judicata: the same issues had been determined in HCCC No. 2587 of 1994 and on appeal in the Court of Appeal, which held the sale agreements void for want of land control board consent under section 6(1) of the Land Control Act, that the claim was statute-barred, and that the gazette notice of 24/7/1998 exempting the land from controlled transactions could not apply retrospectively. The court held it could not validate contracts declared void, that no constitutional violation was proved, and that an adverse possession claim required an originating summons. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Res judicata - whether the petition re-litigates matters decided by the Court of Appeal in Civil Appeal No. 3587 of 1994

Holding

The petition was barred as the Court of Appeal had already determined the issues directly and substantially in issue between the same parties

Reasoning

The Court of Appeal had found the sale transactions void under section 6(1) of the Land Control Act and held the suit time-barred. That decision was final and binding on this court, which could not try a matter already canvassed and decided. The gazette notice exemption could not be applied retrospectively.

p. 2
02

Whether the Petitioner's constitutional rights under Articles 19, 22 and 40 were violated

Holding

The Petitioner failed to prove a violation of its right to own and acquire property

Reasoning

The complaint amounted to an attempt to obtain through a constitutional petition what had been denied in prior litigation: enforcement of void sale agreements. No evidence established unconstitutional conduct by the Respondent, and the constitutional petition could not circumvent the final Court of Appeal decision.

p. 2
03

Whether the land could be deemed acquired by adverse possession or operation of law

Holding

The alternative prayer failed because adverse possession must be sought by Originating Summons

Reasoning

The Court of Appeal had noted the Petitioner's alternative claim sounded in adverse possession, which requires an originating summons. The Petitioner filed a constitutional petition instead and had not pursued the avenues proposed by the Court of Appeal since its decision of 14/7/2000.

p. 2

Legal principles established

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  • Section 7 of the Civil Procedure Act bars a court from trying an issue directly and substantially in issue in a former suit between the same parties heard and decided by a competent court (res judicata)
  • A court cannot validate a contract declared void for lack of land control board consent under section 6(1) of the Land Control Act
  • A suit for adverse possession ought to be brought by way of Originating Summons

Court orders

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  1. 1.The petition is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 19, 22, 40(1) and (2)
  • Civil Procedure ActSection 7
  • Land Control ActSection 6(1)
  • Limitation of Actions Act
Jurisdiction invoked
Constitution of Kenya, 2010 (petition under Articles 19, 22, 40(1) and (2) filed in the High Court and transferred to the Environment and Land Court)

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, "Gitathuru Kariobangi Company Limited v Kariuki Gathecha Resources Limited [2019] KEELC 4310 (KLR)", Case Analysis (2019). ELC No. 247 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4310/eng@2019-02-18

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