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ELCDismissedNot stated in the extract (Kitale ELC suit arising from plaint dated 11/9/2018)· [2020] KEELC 2207 (KLR)

Chorlim Multipurpose Co-operative Society Ltd v Attorney General & another [2020] KEELC 2207 (KLR)

Environment and Land Court
30 April 2020
4,229 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a co-operative's land compensation suit because the same issues had already been decided in an earlier case.

What this practically means

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Executive summary

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The plaintiff, a co-operative society of about 200 members, sued claiming refund of stand premium, general and punitive damages for alleged forcible eviction on 4/8/2018 from LR No. 6992/2 (allegedly allotted to it by the Commissioner of Lands in 1999), alternatively provision of alternative land, plus costs and interest. The 1st defendant raised a preliminary objection dated 29/4/2019 contending the suit was res judicata Kitale ELC Petition No. 4 of 2017, offended Section 7 of the Civil Procedure Act, and was an abuse of process. The court framed two issues: whether the suit was res judicata the earlier petition, and costs. Reviewing the 2018 ruling in Petition No. 4 of 2017 and the 2014 judicial review ruling in Misc. Civil Application No. 67 of 2006, the court held the refund of stand premium claim was decided in the petition; the alternative land claim should have been raised there once the plaintiff knew the land was gazetted forest (applying Henderson v Henderson); and the unlawful eviction claim, turning on alleged lack of notice, was also res judicata since a District Forest Officer's letter communicated the eviction decision and any complaint belonged to the concluded petition. All reliefs being res judicata, Section 7 deprived the court of jurisdiction and, per Owners of the Motor Vessel 'Lillian S', it was bound to down its tools. The preliminary objection succeeded and the suit was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the refund of stand premium claim is res judicata

Holding

Res judicata - the issue of refund of stand premium and propriety of allocation was dealt with in the earlier petition, where a refund was ordered.

Reasoning

The court perused the ruling of 31/5/2018 in Kitale ELC Petition No. 4 of 2017 and found the issues of refund of stand premium and propriety of allocation were directly dealt with, a refund having been ordered. The same land was the subject matter and the plaintiff was a party, satisfying Section 7 of the Civil Procedure Act.

p. 4
02

Whether the claim for alternative land is res judicata

Holding

Res judicata - the prayer for alternative land could and should have been raised in the 2017 petition once the plaintiff knew the land was forest land.

Reasoning

Applying Henderson v Henderson, the plaintiff was aware from the 2014 judicial review proceedings and the respondents' grounds of opposition that the land was gazetted forest land not available for allocation. The prayer for alternative land properly belonged to the subject of litigation in the petition and should have been brought forward there; it is therefore res judicata.

p. 5
03

Whether the claim for general and punitive damages for unlawful eviction is res judicata

Holding

Res judicata - the eviction notice issue was litigated and any complaint should have been raised in the concluded 2017 petition.

Reasoning

The 2014 judicial review ruling established that a letter from the District Forest Officer communicated the District Environment Committee's decision, constituting sufficient notice. The alleged lack of notice was the main ingredient of the eviction claim and ought to have been raised in the petition, which is already concluded; the claim is thus res judicata.

p. 5
04

Consequence of res judicata on jurisdiction

Holding

Section 7 deprives the court of jurisdiction; the suit is dismissed.

Reasoning

Having found all reliefs res judicata, the court invoked the Lillian S principle that jurisdiction is everything and a court without it must down its tools. The preliminary objection dated 29/4/2019 was found to have merit.

p. 5

Legal principles established

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  • A litigant should not, except in exceptional circumstances, reopen in subsequent litigation a matter which might have been brought forward in the earlier suit.
  • Once a suit is found to be res judicata, the court is deprived of jurisdiction and must down its tools.

Court orders

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  1. 1.This suit is dismissed for being res judicata
  2. 2.The plaintiff shall bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 7
  • Constitution of Kenya 2010Articles 40, 27, 28, 47, 50, 1(3), 10
  • Land Act 2012
  • National Land Commission Act

Cases cited (14)

  • Grace Njeri Kabiru -vs- Stephen Wagiita Kiboi & 2 Others
    [2018] eKLR
  • Kungu Ngethe -vs- George Kibatia
    [2018] eKLR
  • ET -vs- Attorney General & another
    [2012] eKLR
  • Kenya Hotel Properties Ltd -vs- Willesden and Others
    eKLR
  • Uhuru Highway Development Limited vs Central Bank of Kenya & 2 others
    [1996] eKLR
  • Independent Electoral and Boundaries Commission -vs- Maina Kiai & 5 others
    (2017) eKLR
  • Muira & Another -vs- Ikinyua & 2 Others
    [2005] eKLR
  • Mburu Kinyua v. Gachini Tuti
    [1978] KLR 69
  • Joseph Kimatu -vs- Jones Alaka Kimatu & another
    [2019] eKLR
  • Gurbachau -vs- Yowani Ekori
    (1958) EA 450
  • Henderson -vs- Henderson
    67 ER 313
  • Kitale ELC Petition No. 4 of 2017 Chorlim Multipurpose Co-operative Society -vs- Attorney General & 9 Others
  • Republic -vs- Minister of Environment & Natural Resources Ex-Parte Chorlim Multi-Purpose Co-operative Society Ltd
    [2014] eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Section 7 of the Civil Procedure Act (Cap 21) - res judicata, depriving the court of jurisdiction

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, "Chorlim Multipurpose Co-operative Society Ltd v Attorney General & another [2020] KEELC 2207 (KLR)", Case Analysis (2020). Not stated in the extract (Kitale ELC suit arising from plaint dated 11/9/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2207/eng@2020-04-30

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