Jamoco Management Committee v Chairman, Busia Municipality Land Disputes Tribunal & another;Ali Awala Ong’aroi (Interested Party) [2019] KEELC 5081 (KLR)
The bottom line
#A Kenyan court allowed the estates of two dead men, wrongly condemned unheard over land, to join judicial review proceedings, rejecting a res judicata defence.
What this practically means
#Executive summary
#Key legal issues
#Enjoining legal representatives of deceased persons who were condemned unheard before the tribunal
The application was allowed in the interests of justice because the parties sued before the tribunal had died before suit and their estates were condemned unheard
The court found from the records that the parties sued before the Land Disputes Tribunal died in 1999 and 2002, well before the 2009 tribunal proceedings. It held that the interests of justice, including fair hearing of those condemned unheard, were better served by allowing their legal representatives to be enjoined at the ex parte stage, without prejudice to the interested party.
Res judicata
The plea of res judicata failed because the interested party did not avail the lower court ruling and the lower court lacks jurisdiction over judicial review proceedings
The interested party claimed a similar application was dismissed in Busia CMCC No. 5/2011 but never availed the ruling. The court held that res judicata concerns a claim or issue already decided, which cannot be established without producing the decision, and that in any event a lower court, lacking judicial review jurisdiction, could not have decided the same matter.
Necessity of amendment
The chamber summons needed amendment, including naming the interested party as a party to the judicial review proceedings
The court examined the chamber summons sought to be amended, noted the change of counsel on record and that the interested party, an absolutely necessary party, was not named in the intended judicial review proceedings, and therefore found amendment necessary.
Legal principles established
#- A party pleading res judicata must avail the decision alleged to have decided the claim or issues
- A subordinate court has no jurisdiction to handle judicial review proceedings, so a lower court ruling in different proceedings cannot found a plea of res judicata in judicial review
Court orders
#- 1.NELSON KIBE NJOROGE and MOHAMED ATHMAN OYOLO enjoined in the judicial review proceedings as the respective 2nd and 3rd ex parte Applicants
- 2.Leave granted to amend the title of the proceedings, the chamber summons for leave to apply for judicial review, and the statement of facts, and to swear a fresh verifying affidavit as per the annexed drafts
- 3.Costs of the application awarded to the interested party
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap 21), Order 8 Rules 3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamoco Management Committee v Chairman, Busia Municipality Land Disputes Tribunal & another;Ali Awala Ong’aroi (Interested Party) [2019] KEELC 5081 (KLR)", Case Analysis (2019). Not stated in the judgment (Judicial Review proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5081/eng@2019-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.