Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 25th July 2014 (transferred from Kisii Environment and Land Court on 22nd March 2017)· [2020] KEELC 1500 (KLR)

Francis Dawo Kawa v County Government of Migori; Tobias Obilo Anduru (Interested Party) [2020] KEELC 1500 (KLR)

Environment and Land Court
8 July 2020
GOG. M. A. Ongondo
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed a landowner's constitutional petition because the same plot dispute had already been finally decided in earlier litigation.

What this practically means

#

Executive summary

#
The petitioner, Francis Dawo Kawa, petitioned against the County Government of Migori over Plot No. 83B in Migori town, claiming he was its bona fide allottee through one Ramji, the original allottee, from the defunct Municipal Council of Migori in 2001. He alleged unlawful repossession and reallocation to the interested party, Tobias Obilo Andaru, and sought declarations of unconstitutionality and discrimination (Articles 26, 28 and 43), a restraining order, rectification of records, compensation of Kshs 10,000,000, and general and exemplary damages of Kshs 2,000,000. The respondent denied the petition, contending the proper parties were absent and the matter res judicata; the interested party likewise pleaded res judicata based on Migori PMCC No. 239 of 2004, in which judgment was entered in his favour, and the petitioner's appeal (Kisii HCC Appeal No. 307 of 2006) was dismissed as incompetent and an abuse of process. Ongondo, J framed two issues: whether the petitioner's constitutional rights were violated and whether he was entitled to the orders sought. The court noted the council's 1997 resolution allocating the developed part of the land to Ramji and the undeveloped part to Mr. Nyangayi and Mr. Obilo, and held that a dismissed appeal cannot be revived through a fresh petition. Applying section 7 of the Civil Procedure Act, the court found the petition res judicata and an abuse of court process. The petition was dismissed with costs to the respondent and the interested party.

Key legal issues

#
01

Whether the petition is res judicata by virtue of Migori PMCC No. 239 of 2004 and Kisii HCC Appeal No. 307 of 2006

Holding

The petition is res judicata; the same subject matter between the parties over Plot 83B was finally determined in Migori PMCC No. 239 of 2004, whose appeal was dismissed, and the petition is an abuse of court process.

Reasoning

Applying section 7 of the Civil Procedure Act, the court found the earlier suit concerned the same plot and parties. Judgment was delivered on 24th May 2006 and the decree issued on 15th September 2006. The petitioner's appeal, Kisii HCC Appeal No. 307 of 2006, was dismissed as incompetent and an abuse of process. A dismissed appeal cannot be revived through a petition, and litigation must come to an end.

p. 4
02

Whether the respondent violated the petitioner's constitutional rights through alleged double allocation and repossession of Plot 83B

Holding

No violation was established; the petitioner is not entitled to the orders sought because the petition fails as res judicata and lacks merit.

Reasoning

Although the petitioner produced a plot card, receipts and approved plans, the court noted the council's 1997 resolution allocating Plot 83 (developed part) to Ramji, from whom the petitioner claimed purchase, and the behind phase to Mr. Nyanganyi and Mr. Obilo. The interested party's claim was already adjudicated in the earlier suit, and invoking Fletcher v Peck, a purchaser without notice of concealed defects cannot have defects set up against him; but the prior final judgment barred the claim.

p. 4

Legal principles established

#
  • A dismissed appeal cannot be resurrected through any other method including a fresh petition; litigation must come to an end.

Court orders

#
  1. 1.The instant petition dated 25th July 2014 and lodged in court on 4th August 2014 is dismissed with costs to the respondent and interested party

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 26, 28, 43
  • Constitution of Kenya, 2010Articles 7(3)(b), 159(2)(b) and (d)
  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure Act, Cap 21Sections 10(2) and 100
  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Rules, 2010Section 2 (definition of suit)
  • Environment and Land Court Act, 2015 (2011)Sections 3 and 19

Cases cited (6)

  • Great Lakes Transport Company (U) Ltd -vs- Kenya Revenue Authority
    (2009) KLR 720
  • Fletcher -vs- Peck
    10 U.S 87 (1810)
  • Commercial Exchange Ltd & another -vs- Barclays Bank of Kenya Ltd
    (1966) LLR 2194 (CAK)
  • Caneland Ltd & others v Delphis Bank Ltd
    Civil Application No. Nai 344 of 1999
  • Ngoni Matengo Cooperative Marketing Union Limited -vs- Ali Mohammed Osman
    (1959) EA 577
  • Ogada -vs- Mollin
    (2009) KLR 620
Jurisdiction invoked
Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act (Cap 21); Sections 3 and 19 of the Environment and Land Court Act, 2015 (2011)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Dawo Kawa v County Government of Migori; Tobias Obilo Anduru (Interested Party) [2020] KEELC 1500 (KLR)", Case Analysis (2020). Petition dated 25th July 2014 (transferred from Kisii Environment and Land Court on 22nd March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1500/eng@2020-07-08

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