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ELCStruck OutPetition No. 6 of 2017· [2019] KEELC 4909 (KLR)

Paul Kamunya Kirungii v Attorney General & 2 others [2019] KEELC 4909 (KLR)

Environment and Land Court
17 January 2019
4,614 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's estate lost its challenge because the land dispute tribunal's award had already become a court judgment that only appeal or review could overturn.

What this practically means

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Executive summary

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The Petitioner, legal representative of the estate of Damiano Kirungii Ruimbo, petitioned the High Court at Nakuru (later transferred to the Environment and Land Court at Nyahururu) challenging the sub-division of land parcel Nyandarua/Pesi/32 in execution of a decree adopting the award of the Ndaragwa Divisional Land Disputes Tribunal. He sought certiorari to quash the tribunal award and the Magistrate's Court decree of 22nd July 2005, a declaration that the deceased was the lawful owner of Nyandarua/Pesi/679, and an injunction against trespass, alleging violations of Articles 40, 47 and 50 through proceedings conducted without notice to the registered owner. The 1st and 2nd Respondents raised a preliminary objection that the Petition was res judicata vis-à-vis the tribunal proceedings and Nakuru High Court Civil Appeal No. 175 of 2007 (dismissed 3rd August 2012), sub judice, frivolous and an abuse of process; the 3rd Respondent supported it. The Petitioner argued the tribunal award was a nullity for want of jurisdiction over title disputes and was therefore incapable of supporting a res judicata plea. The court, applying Mukisa Biscuits, upheld the objection. It held that the award, having been adopted as a judgment of a competent court and unimpaired on appeal, ceased to exist independently and could not be impugned by declaration; the ELC's power to nullify ultra vires awards applies only before adoption. The Petition dated 4th May 2015 was struck out entirely with costs to the Respondents on 17th January 2019.

Key legal issues

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01

Whether the Petition was res judicata

Holding

The Petition was res judicata in respect of matters heard and finally decided in Nakuru High Court Civil Appeal No. 175 of 2007

Reasoning

The tribunal award had been adopted as a judgment of the Principal Magistrate's Court, upheld on appeal to the High Court, and the further appeal was withdrawn. The issues, parties and title in the Petition were identical to those previously litigated before competent courts, satisfying the test in Section 7 of the Civil Procedure Act. The Petition could not circumvent those outcomes by resort to a court of concurrent jurisdiction.

p. 6
02

Whether the court could nullify the adopted tribunal award as a nullity for want of jurisdiction

Holding

It could not, because the award had transmuted into a court judgment through adoption

Reasoning

Although the ELC can nullify awards made outside a tribunal's jurisdiction, that power lapses once the award is adopted as a judgment. The adopted decree could only be attacked on appeal or by review before the same court; the Petitioner's failure to appeal to the Provincial Appeals Committee or seek judicial review was fatal.

p. 5
03

Whether the Preliminary Objection met the Mukisa Biscuits test

Holding

Yes - the objection raised pure points of law (res judicata and jurisdiction) and was upheld

Reasoning

Applying the classic definition of a preliminary objection as a point of law argued on the assumption that all pleaded facts are correct, the objection that the Petition was res judicata disposed of the suit without ascertaining facts, and was therefore properly entertained in limine.

p. 5

Legal principles established

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  • A tribunal award adopted as a judgment of a competent court ceases to exist on its own and can only be varied, vacated, set aside or reviewed by the same court or an appellate court
  • This court's power to nullify a tribunal award for excess jurisdiction is exercisable only before the award transmutes into a judicial determination through adoption as a court judgment
  • A disappointed party cannot reopen a decided case by disguising it as a constitutional petition; res judicata bars such multiplicity

Court orders

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  1. 1.The Preliminary Objection dated the 27th March 2018 is merited and is hereby upheld
  2. 2.The Petition dated the 4th May 2015 is struck out entirely
  3. 3.Costs to the Respondents

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 5 and 7
  • Civil Procedure RulesOrder 53
  • Land Disputes Tribunal Act No. 18 of 1900Sections 3, 3(1) and 8/8(1)
  • Constitution of Kenya, 2010Articles 20, 22, 23(3), 40, 40(1), 47, 50
  • Fair Administrative Action ActSection 4
  • Environment and Land Court ActSection 13(7)(b)

Cases cited (10)

  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA. 696
  • Masagu Ole Koitelel Naumo vs Principal Magistrate Kajiado Law courts & Another
    [2014] eKLR
  • Kenya Human Rights Commission & Another vs NGO Co-ordination Board & Another
    [2018] eKLR
  • Dry Associates Ltd vs Capital Markets Authority & Another
    [2012] eKLR
  • Republic v Kuria West District (Masaba Division) Land disputes Tribunal & 3 others Exparte Nchama Chacha Nyarungu
    [2014] eKLR
  • Desai vs Warsama
    [1967] E.A 351
  • Joseph Chege Gatua vs Zakaria Karimi Gatua
    [2015] eKLR
  • Gitau Kamau vs Ndungu Kamau & another
    [2017] eKLR
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2014] eKLR
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Article 23(3) cited by Petitioner as conferring power to grant orders; original constitutional petition jurisdiction); Environment and Land Court Act Section 13(7)(b) invoked by Petitioner

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, "Paul Kamunya Kirungii v Attorney General & 2 others [2019] KEELC 4909 (KLR)", Case Analysis (2019). Petition No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4909/eng@2019-01-17

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