Nelson Machoka Keraro (Suing as the administrator of the estate of Kenyanya Keraro) v Abel Ontweka Kiage (Administrator of the estate of Yuvenalis Kiage Omwega (Deceased) & 4 others [2020] KEELC 675 (KLR)
The bottom line
#The Environment and Land Court in Kisii struck out a land petition that was simply an attempt to revive a time-barred claim through the Constitution.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The Petition is res judicata; the same subject matter between the same parties had been determined in Kisii ELC Case No. 188 of 2017, which was struck out as statute-barred on 31st May 2019.
The Petitioner had previously filed a plaint over the same parcel and sought the same cancellation of titles in Kisii ELC Case No. 188 of 2017. That suit was struck out as statute-barred and was never appealed, so the decision stands. Framing the same grievance as a constitutional petition amounts to evading the doctrine of res judicata by introducing a new cause of action to seek the same remedy.
Abuse of process via constitutional petition
Invoking constitutional relief where an adequate statutory/parallel remedy exists is an abuse of court process.
Applying Damian Belafonte v Attorney General of Trinidad and Tobago, constitutional relief should not be sought where a parallel remedy exists unless there is a feature making the ordinary remedy inadequate. The Petitioner's claim was capable of being determined by way of plaint, as he himself demonstrated by filing ELC Case No. 188 of 2017; the petition was merely an attempt to circumvent limitation.
Locus standi
The Petitioner lacked locus standi as his Ad Litem Grant in Kisii CM Succession Cause No. 101 of 2017 was revoked on 30th January 2020.
The 1st Respondent demonstrated that the ad litem grant relied upon by the Petitioner to sue as administrator had been revoked. Without a valid grant the Petitioner had no capacity to institute or maintain the suit on behalf of the deceased's estate, which independently rendered the Petition incompetent.
Legal principles established
#- Where a claim can be redressed within an existing legislative framework, a party must pursue that framework rather than a constitutional petition, unless the framework provides no efficacious remedy.
- A suit struck out as statute-barred cannot be revived as a constitutional petition to circumvent the Limitation of Actions Act.
Court orders
#- 1.The Petition is struck out
- 2.Costs to the 1st Respondent
- Jurisdiction invoked
- Articles 21(1), 22(1) and 40(3) of the Constitution of Kenya 2010 (as invoked by the Petitioner)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelson Machoka Keraro (Suing as the administrator of the estate of Kenyanya Keraro) v Abel Ontweka Kiage (Administrator of the estate of Yuvenalis Kiage Omwega (Deceased) & 4 others [2020] KEELC 675 (KLR)", Case Analysis (2020). Petition (Kisii ELC) – Notice of Preliminary Objection dated 6th December 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/675/eng@2020-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.