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ELCDismissedOriginating Summons dated 19th September 2013 (amended 30th June 2017)· [2019] KEELC 4633 (KLR)

Elkana Kibingor v Charles Kipkoech Tallam & 4 others [2019] KEELC 4633 (KLR)

Environment and Land Court
6 February 2019
8,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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The court dismissed a landowner's bid to revive an old tribunal award, ruling he must enforce it in the Magistrate's Court that adopted it.

What this practically means

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Executive summary

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The plaintiff, claiming sole ownership of LR No. 498/121 in Eldama Ravine Town, filed an Originating Summons seeking enforcement of a Koibatek District Land Dispute Tribunal decision of 2008, adopted as a judgment of the Eldama Ravine Resident Magistrate's Court in 2012. He sought an account of rents, accrued rent and mesne profits, a declaration that the defendants held the property in trust for him, or alternatively a registrable interest arising from their contributions. The defendants maintained they bought the plot from an Asian vendor (Patel) with five co-purchasers, excluding the plaintiff, and urged dismissal on grounds that the suit was defective, time barred and res judicata. The court held the unsigned Originating Summons defect was cured by the amended signed summons, and that suing estates of deceased persons was an anomaly but not fatal to the whole suit. On the central issues, the court found the Tribunal award, adopted as a valid judgment of the Magistrates' Court and never appealed, conclusively determined the same questions the plaintiff now raised; raising trust and ownership afresh was a backdoor appeal. Applying the saving provisions of the Interpretation and General Provisions Act and Section 34(1) of the Civil Procedure Act, the court held it lacked jurisdiction to enforce a decree of the Magistrates' Court; enforcement lay in that court, where stay orders had already been lifted. The suit was dismissed with each party bearing their own costs, the court noting the defendants had also not complied with the lower court orders.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata as the issues were dealt with by the Tribunal award adopted as a judgment of the Magistrates' Court, which remains valid and unappealed

Reasoning

The Tribunal award, adopted as judgment on 14th May 2012, covered the same questions the plaintiff now seeks to litigate, including inclusion in ownership and receipt of rent. The defendants' judicial review was dismissed for want of prosecution, and the stay orders were lifted. No appeal was preferred against the adopted judgment, which remains valid and binding. Raising trust and ownership issues afresh is an attempt to appeal by the backdoor.

p. 9
02

Jurisdiction to enforce the adopted Tribunal award

Holding

The Environment and Land Court lacks jurisdiction to enforce a judgment delivered by the Magistrates' Court; enforcement lies in that court

Reasoning

Section 23(3)(e) of the Interpretation and General Provisions Act preserves awards of defunct Land Disputes Tribunals and judgments adopting them as valid and enforceable. Section 34(1) of the Civil Procedure Act requires execution questions to be determined by the court executing the decree. The best forum is the Magistrates' Court that delivered the judgment, especially since stay orders had been lifted.

p. 10
03

Unsigned originating summons

Holding

The defect was cured by the amended, signed Originating Summons

Reasoning

The original Originating Summons filed by the plaintiff's advocate was unsigned, contrary to Order 2 Rule 6 of the Civil Procedure Rules. However, an amended Originating Summons was filed bearing the advocate's signature. The court held the defect was one of form, was rectified, and the threshold requirement that pleadings be signed was met.

p. 8
04

Suing estates of deceased persons

Holding

It was an anomaly to sue estates without administrators, but the worst consequence would have been striking out those parties, not the whole suit

Reasoning

The plaintiff sued the 3rd to 5th defendants as estates of deceased persons without administrators, which the court flagged at directions. The plaintiff later obtained limited grants of letters of administration ad litem and effected substitution. The court held that the anomaly would at most have led to striking out those parties, leaving the suit alive against the properly sued 1st and 2nd defendants.

p. 9

Legal principles established

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  • A valid judgment of a court, unless overturned on appeal, remains valid and enforceable notwithstanding questions of jurisdiction
  • Decisions and awards of defunct Land Disputes Tribunals and judgments adopting them remain valid and enforceable under the saving provisions of the Interpretation and General Provisions Act
  • All questions arising between parties relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not by a separate suit

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSections 13 and 30
  • Land Disputes Tribunal Act (repealed)Sections 3, 7(2) and 8(1)
  • Civil Procedure Act (Cap 21)Sections 7 and 34(1)
  • Civil Procedure RulesOrder 2 Rules 1 and 6; Order 21 rule 13; Order 1 Rules 1 & 4; Order 4 Rules 4 & 5
  • Limitation of Actions Act (Cap 22)Sections 7, 9, 18, 20, 36 and 39
  • Interpretation and General Provisions Act (Cap 2)Section 23(3)
  • Evidence ActSection 34
  • Law of Succession ActFifth Schedule, Form 14 (Limited Grant Ad Litem)

Cases cited (17)

  • Florence Nyaboke Machani v Mogere Amos Ombui & 2 others
    [2014] eKLR
  • WACHIRA WEHEIRE v ATTORNEY-GENERAL
    [2010] eKLR
  • Stephens & 6 others v Stephens & another
    [1987] eKLR
  • Chege Macharia v Francis Kimani Kirimira
    [2015] eKLR
  • Mutiso v Mutiso
    [1988] eKLR
  • Hodgson v Marks
    [1971] Ch 892
  • N W K v J K M & another
    [2013] eKLR
  • Twalib Hatayan & another v Said Sagar Ahmed Al-Heidy & 5 others
    [2015] eKLR
  • Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva
    [2016] eKLR
  • Greenway vs. McKay
    (1911) 12 CLR 310
  • Geoffrey Nganga Njuriba v Attorney General & another
    [2016] eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    [2010] eKLR
  • John Florence Maritime Services Limited & Ano. Vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Henderson Vs Henderson
    (1843) 67 ER 313
  • MUTEMI MWASYA VS MUTUA KASUVA MACHOKOS HC.C.A. 140 of 2001
  • CHRISPUS MICHI GAKU VS KARANJA WAINAINA
    [2006] eKLR
  • PETER OUMA MITAI VS JOHN NYARARA
    KISII HCCCA 297 of 2005
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13 and 30 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elkana Kibingor v Charles Kipkoech Tallam & 4 others [2019] KEELC 4633 (KLR)", Case Analysis (2019). Originating Summons dated 19th September 2013 (amended 30th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4633/eng@2019-02-06

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