Gitathuru Kariobangi Company Limited v Kariuki Gathecha Resources Limited [2019] KEELC 4310 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata - whether the petition re-litigates matters decided by the Court of Appeal in Civil Appeal No. 3587 of 1994
The petition was barred as the Court of Appeal had already determined the issues directly and substantially in issue between the same parties
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.
Whether the Petitioner's constitutional rights under Articles 19, 22 and 40 were violated
The Petitioner failed to prove a violation of its right to own and acquire property
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.
Whether the land could be deemed acquired by adverse possession or operation of law
The alternative prayer failed because adverse possession must be sought by Originating Summons
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.
Legal principles established
#- 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
#- 1.The petition is dismissed with no orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.