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ELCDismissedConstitutional Petition dated 19th March 2013 (Migori)· [2020] KEELC 2231 (KLR)

Peter Odhiambo Oloo v School Management Committee Magwar Primary School & another [2020] KEELC 2231 (KLR)

Environment and Land Court
20 May 2020
GOG. M. A. Ongondo
1,892 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's constitutional petition because he never appealed or judicially reviewed a Land Disputes Tribunal decision that had already been adopted as a court judgment.

What this practically means

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Executive summary

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The petitioner, registered proprietor of land parcel North Nyokal/Gongo/677, filed a constitutional petition on 19th March 2013 in the Environment and Land Court at Migori seeking declarations that the 1st respondent, a school, occupied the suit land unconstitutionally; that any judicial or quasi-judicial process used by the 1st respondent to gain rights over the land was unlawful; an order that the 2nd respondent was under no duty to enforce the decision of the defunct Rangwe Division Land Disputes Tribunal; general damages for trespass; and costs. The petitioner relied on Articles 22(1), 25, 40 and 80 of the Constitution and sections 24(a) and 26 of the Land Registration Act, contending the Tribunal exceeded its mandate by awarding Kshs 35,000/= compensation. The 1st respondent opposed, asserting the dispute was heard and determined by the defunct Tribunal, whose verdict was adopted as judgment in Homa Bay SRM Misc Civil Application No. 100 of 2011, with a decree for subdivision of the land; that no appeal or judicial review was brought; and that the petition was res judicata and an abuse of process, with a related suit pending in Kisii (ELCC No. 103 of 2008 (OS)). Framing two issues - whether the Tribunal's actions violated the petitioner's constitutional rights, and the appropriate orders - the court held that it was not conclusively shown that the petitioner's rights were infringed and that the petition was devoid of merit. The petition was dismissed with costs to the respondents on 20th May 2020.

Key legal issues

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01

Whether the petitioner's constitutional rights were violated by the defunct Land Disputes Tribunal's decision

Holding

The court found no infringement and dismissed the petition

Reasoning

The petitioner claimed the defunct Tribunal exceeded its mandate by awarding Kshs 35,000/= for trespass and violated his Article 40 property rights. The court noted that the dispute had been heard and determined by the Tribunal, its verdict adopted in Homa Bay SRM Misc Civil Application No. 100 of 2011, and no appeal or judicial review was filed. Considering the answer, the annexed documents and the circumstances, the court held it was not conclusively established that the petitioner's rights were infringed.

p. 3
02

Res judicata and sub judice raised by the 1st respondent

Holding

The court acknowledged the doctrines under sections 6 and 7 of the Civil Procedure Act but rested its dismissal on the failure to prove infringement

Reasoning

The 1st respondent contended the petition was res judicata, the Tribunal's verdict having been adopted as judgment in Homa Bay SRM Misc Application No. 100 of 2011, and that a suit was pending in Kisii ELCC No. 103 of 2008 (OS). The court recited the definitions of res judicata and sub judice and the threshold in sections 6 and 7 of the Civil Procedure Act, but declined to elaborate further on the pending suit and instead decided on the merits of the rights claim.

p. 3

Legal principles established

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  • Issues for determination generally flow from the pleadings or as framed by the parties, and a trial court may frame issues arising from facts stated by the parties even if not covered by pleadings
  • Rights of registered land owners can be challenged on grounds of fraud, misrepresentation and adverse possession; the right to property is not unlimited
  • Trespass means any unjustified intrusion upon land in the possession of another

Court orders

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  1. 1.The petition dated 19th March 2013 is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 7(3)(b), 22(1), 25, 258, 40(1), 40(6), 80, 159(2)(b) and (d)
  • Land Registration ActSections 24(a) and 26(1)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 3A, 6 and 7
  • Environment and Land Court Act, 2015 (2011)Sections 3 and 19

Cases cited (8)

  • Obadiah K Macharia v Kenya Power and Lighting Co Ltd (2016) eKLR
    (2016) eKLR
  • John Mining Temol and another v Governor of Bungoma County and 17 others (2014) eKLR
    (2014) eKLR
  • Great Lakes Company (U) Ltd v Kenya Revenue Authority (2009) KLR 720
    (2009) KLR 720
  • Odd Jobs v Mubia (1970) EA 476
    (1970) EA 476
  • Salim v Boyd (1971) EA 550
    (1971) EA 550
  • Vijay Morjaria v Nansingh Madhusingh Darbar and another (2000) eKLR
    (2000) eKLR
  • Zachariah Onsongo Momanyi v Evans Omurwa Onchagwa (2014) eKLR
    (2014) eKLR
  • Eric Adome and another v Pauline Kasumba Osebe and another (2014) eKLR
    (2014) eKLR
Jurisdiction invoked
Articles 22(1) and 258 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights and of the Constitution); Environment and Land Court Act, 2015

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, "Peter Odhiambo Oloo v School Management Committee Magwar Primary School & another [2020] KEELC 2231 (KLR)", Case Analysis (2020). Constitutional Petition dated 19th March 2013 (Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2231/eng@2020-05-20

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