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ELCStruck OutMeru ELC Petition (petition dated 21/04/2020)· [2020] KEELC 1272 (KLR)

Mberia v Mbui & 4 others (Constitutional Petition 6 of 2020) [2020] KEELC 1272 (KLR)

Environment and Land Court
30 September 2020
LMLucy N. Mbugua
1,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court struck out a land dispute petition because it had already been decided—losing parties must appeal, not restart with a constitutional petition.

What this practically means

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Executive summary

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The petitioner, owner of parcel NTIRIMITI SETTLEMENT SCHEME/417, filed a petition under Articles 40, 64, 67, 162(2)(b) and 165(5)(b) of the Constitution seeking declarations that parcels 417, 484 and 2109 in the Ntirimiti Settlement Scheme remain as per the original registry map, that the district land registrar's decision of 26 July 2016 is null and void, an order to the surveyor to set beacons for an access road, and a permanent injunction against trespass by the 1st respondent, who owns parcels 484 and 2109. The petitioner alleged the 1st respondent encroached on his land in 2016 and misled the 2nd respondent into treating the matter as a boundary dispute rather than trespass. The 1st respondent raised a preliminary objection arguing the petition was res judicata given Meru ELC Suit No. 151 of 2016, where a preliminary objection was sustained on 11.7.2018 and a review application dismissed on 13.11.2019, and that the petition was vexatious and an abuse of process. The petitioner contended res judicata could not apply because the former suit was dismissed on jurisdiction without a hearing on the merits. Relying on John Florence Maritime Services, the court held res judicata applies to constitutional litigation and that the court had already pronounced itself on whether the dispute was boundary or trespass; the proper recourse was appeal, not reopening litigation disguised as a constitutional petition. The preliminary objection was upheld, the petition struck out with costs to the 1st respondent. The ruling was delivered electronically under COVID-19 practice directions.

Key legal issues

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01

Res judicata

Holding

The petition is res judicata as the same trespass/boundary dispute between the same parties was heard and determined in Meru ELC Suit No. 151 of 2016, whose dismissal and refusal of review stand

Reasoning

The court perused ELC Suit No. 151 of 2016 and found that the same issue - whether the dispute was one of boundary or trespass - had been dealt with, the preliminary objection sustained on 11.7.2018 and the application for review dismissed on 13.11.2019. Adding parties did not alter identity of claims. The proper recourse was appeal, not a fresh constitutional petition.

p. 2
02

Abuse of process / forum shopping

Holding

The petition, being a fabricated ordinary suit dressed as a constitutional petition, was vexatious and an abuse of court process

Reasoning

The 1st respondent argued the petition was an attempt to forum shop and did not meet the threshold for a constitutional petition since no constitutional rights were infringed and the petitioner had recourse to challenge the registrar's decision. The court agreed the preliminary objection was merited.

p. 2

Legal principles established

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  • Res judicata applies to constitution-based litigation but should only be invoked in the clearest of cases
  • A prior suit dismissed for lack of jurisdiction following a sustained preliminary objection, with review refused, cannot be re-opened by way of a constitutional petition

Court orders

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  1. 1.The Preliminary Objection filed on 8.6.2020 is merited
  2. 2.The petition is struck out with costs to the 1st respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 64, 67, 162(2)(b), 165(5)(b)
  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • Naitore M'Iburi & Another v Attorney General & 2 others; Sebastian Kaaria (Interested Party)
    [2018] eKLR
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    [2017] eKLR
  • E.T v Attorney General & Another
    [2012] eKLR
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Peter Gichuki King'ara v Independent Electoral and Boundaries Commission & 2 Others
    (2013) eKLR
  • County Government of Migori Ltd v INB Management Consultant Ltd
    [2019] eKLR
  • Dorine Akula v APA Insurance Company Ltd
    [2016] eKLR
  • Christopher Orina Kenyariri v Salame Beach Hotel Ltd & 3 others
    [2017] eKLR
  • George Omondi & another v National Bank of Kenya and 2 others
    [2001] eKLR
Jurisdiction invoked
Articles 40, 64, 67, 162(2)(b) and 165(5)(b) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mberia v Mbui & 4 others (Constitutional Petition 6 of 2020) [2020] KEELC 1272 (KLR)", Case Analysis (2020). Meru ELC Petition (petition dated 21/04/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1272/eng@2020-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.