Anne Chepsiror & 4 others v National Land Commission & 4 others [2020] KEELC 1052 (KLR)
The bottom line
#The Environment and Land Court struck out a land petition because the same ownership dispute had already been decided, showing Kenyan courts won't allow fresh lawsuits over settled matters.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata in view of Eldoret ELC No. 71 of 2013
Yes. The ownership of Eldoret Municipality Block 8/592, 594 and 595 was finally determined in Eldoret ELC No. 71 of 2013 between the same parties (or their privies) litigating under the same title, so the Petition contravenes Section 7 of the Civil Procedure Act.
The judgment in Eldoret ELC No. 71 of 2013 (Munyao, J., delivered 30th January 2015) determined title to the same parcels, holding the Defendants were not innocent purchasers and cancelling their titles in favour of Kenya Industrial Estates Limited. The 1st and 2nd Petitioners and both Intended Petitioners were defendants in that suit, and the 3rd Petitioner testified as DW5 and later lost an application to set aside the judgment. Adding the National Land Commission and land registrars as respondents, and framing the claim as a rights petition, did not evade res judicata.
Whether the res judicata plea was properly raised as a preliminary objection
Yes, it is a pure point of law under the Mukisa Biscuits test since no facts were disputed and no judicial discretion was sought.
Applying Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (Law JA and Newbold P), the court found the objection rested on the undisputed fact of the 2013 judgment, which could be taken as correct without ascertaining facts. The Petitioners did not file submissions to rebut the 4th Respondent's position, and the 2nd and 5th Respondents supported it. The court was therefore entitled to determine the point in limine.
Whether the Intended Petitioners should be enjoined
The Motion was not determined on its merits as it was overtaken by the striking out of the Petition.
Having found the Petition res judicata and struck it out, the court held no order could issue on the joinder Motion. The Intended Petitioners were themselves defendants in Eldoret ELC No. 71 of 2013, so their joinder would not have cured the res judicata bar in any event.
Legal principles established
#- Res judicata under Section 7 of the Civil Procedure Act bars a constitutional petition raising issues already finally determined between the same parties by a court of competent jurisdiction
- Parties cannot evade res judicata by adding other parties or new causes of action in a subsequent suit
- Res judicata may be raised as a valid defence to a constitutional claim under Rule 3(8) of the Mutunga Rules
- Once res judicata is established, the court is without jurisdiction to make any further determination
Court orders
#- 1.The Petitioners' Petition and Notice of Motion dated the 29th January, 2020 and filed on the 30th January, 2020 are struck out with costs for being res judicata and a contravention of Section 7 of the Civil Procedure Act Chapter 21 of Laws of Kenya.
- 2.In view of Order (a), the Notice of Motion by the two Intended Petitioners dated the 29th February, 2020 has been overtaken by event and no order can issue on it.
- Jurisdiction invoked
- Original constitutional jurisdiction under Articles 19, 20, 21, 22, 23, 27, 28, 40, 43, 47, 48, 50, 64 and Chapter Six of the Constitution of Kenya, 2010 (the court nonetheless held the Petition res judicata and struck it out)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Harcharan Singh Sehmi & 2 others v Rospatech Limited & 5 others [2019] KEELC 1981 (KLR)[2019] KEELC 1981 (KLR)22 Jul 2019
Cite this brief
#Cite this brief
Caselaw, "Anne Chepsiror & 4 others v National Land Commission & 4 others [2020] KEELC 1052 (KLR)", Case Analysis (2020). ELC Petition No. 6 of 2020 (Petition and Notice of Motion dated 29th January, 2020; 4th Respondent's Notice of Preliminary Objection dated 12th February, 2020; Intended Petitioners' Notice of Motion dated 29th February, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1052/eng@2020-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.