A.A. Bayusuf & Sons Limited v County Government of Tana River & another [2020] KEELC 752 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a company's land claim because an earlier court judgment over the same plot already settled ownership, binding even parties to the first case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition was res judicata the consolidated Malindi ELC Case No. 168 of 2012 and Petition No. 18 of 2012
Yes. The suit property was part and parcel of the property decreed to the 2nd Respondent's family by the Judgment of Angote J of 15th April 2016, and under Explanation No. 6 to Section 7 of the Civil Procedure Act the Petitioner is deemed to claim under the 1st Respondent, so the Petition is res judicata
The court found the suit property herein formed part of the 15 acres litigated in the consolidated Malindi suits. The Petitioner's claim rested on an allotment by the 1st Respondent's predecessor made on the presumption that it owned the land; that presumption was negated by the 2016 Judgment. Under Explanation No. 6 to Section 7, persons interested in a right litigated bona fide by others are deemed to claim under the litigating party, binding the Petitioner to the prior determination.
Whether this Court had jurisdiction to determine the Petition
No. A decision had already been made on the subject by a Judge of competent and equal (concurrent) jurisdiction, so this Court could not entertain the Petition
The court reasoned that proceeding with the Petition would require it to pronounce itself on a matter already authoritatively determined by a court of concurrent jurisdiction. Res judicata goes to jurisdiction; a court seised of a matter already finally decided by a competent court of equal standing must decline jurisdiction. The appropriate remedy for the Petitioner, if any, lies against the 1st Respondent, not by relitigating ownership.
Whether the Petitioner's status as a non-party to the consolidated suit defeated the res judicata plea
No. Although the Petitioner was not a party, Explanation No. 6 to Section 7 of the Civil Procedure Act deems persons interested in a right litigated bona fide to claim under the litigating party
The court acknowledged the Petitioner was not a party to the consolidated suits, but held that its claimed interest derives wholly from an allotment by the 1st Respondent, whose ownership was the subject of the earlier litigation. The doctrine extends to privies and persons claiming under parties, so the Petitioner was bound by the 2016 Judgment and could not raise a fresh challenge.
Legal principles established
#- A party claiming through an allotment made by an authority whose ownership of the land was extinguished by a prior judgment is bound by Explanation No. 6 to Section 7 of the Civil Procedure Act where the public/private right was litigated bona fide
- A litigant who was not a party to a prior suit may nonetheless be barred by res judicata where the allotment underlying his claim was made by a party to the prior suit on a presumption of ownership that the prior judgment demolished
Court orders
#- 1.The 2nd Respondent's Preliminary Objection is upheld and the Petition is struck out
- 2.Each Party shall bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) jurisdiction of the Environment and Land Court (implied); suit determined under Section 7 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A.A. Bayusuf & Sons Limited v County Government of Tana River & another [2020] KEELC 752 (KLR)", Case Analysis (2020). Petition No 25 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/752/eng@2020-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.