Paul Kamunya Kirungii v Attorney General & 2 others [2019] KEELC 4909 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Petition was res judicata
The Petition was res judicata in respect of matters heard and finally decided in Nakuru High Court Civil Appeal No. 175 of 2007
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as a judgment of the Principal Magistrate's Court, upheld on appeal to the High Court, and the further appeal was withdrawn.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.
Whether the court could nullify the adopted tribunal award as a nullity for want of jurisdiction
It could not, because the award had transmuted into a court judgment through adoption
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.
Whether the Preliminary Objection met the Mukisa Biscuits test
Yes - the objection raised pure points of law (res judicata and jurisdiction) and was upheld
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated the 27th March 2018 is merited and is hereby upheld
- 2.The Petition dated the 4th May 2015 is struck out entirely
- 3.Costs to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.