Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutMalindi ELC Petition No. 3 of 2019 (consolidated with Malindi ELC Misc. Civil Application No. 2 of 2019)· [2020] KEELC 2337 (KLR)

La Marina Limited v Nathan Kahara & 2 others [2020] KEELC 2337 (KLR)

Environment and Land Court
27 May 2020
JOJ.O. Olola
3,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
La Marina Ltd petitioned the Environment and Land Court at Malindi seeking a declaration of a right to be heard over Plots Chembe/Kibabamshe/646 and 665, judicial review orders quashing the National Land Commission's decision granting Plot Chembe/Kibabamshe/375 to Nathan Kahara, mandamus to cancel that title, and compensation for breach of Articles 47 and 50. Kahindi Ngowa Jogolo's judicial review application seeking certiorari, mandamus and prohibition over the same land was consolidated with the Petition by consent. Kahara raised a preliminary objection arguing res judicata, statutory time-bar and incompetence arising from affidavits sworn by Philip Munge Ndolo, alleged not to be a director of the Petitioner. The court found the earlier suit (Mombasa HC Misc. Civil Application No. 770 of 2004, later Malindi HC Misc. Application No. 72 of 2006) had been dismissed in 2009 for want of form, so res judicata did not bar the present suit as the substantive issues were never determined. However, the court held the dispute really dates to a 2004 directive, making the Petition some sixteen years late and barred by Section 7 of the Limitation of Actions Act. Even if the cause of action arose from the NLC Gazette Notice of 17th July 2017, the challenge came twenty months later, far outside the six months permitted by Order 53 Rule 2 of the Civil Procedure Rules. The court upheld the preliminary objection, struck out the consolidated Petition and Judicial Review application as misconceived, and awarded costs to the 1st and 2nd Respondents.

Key legal issues

#
01

Res judicata

Holding

The preliminary objection on res judicata failed because the earlier suit was dismissed on a technicality (want of form) and the substantive issues were never determined on the merits.

Reasoning

Applying Section 7 of the Civil Procedure Act and Karia v Attorney General, the court examined the 2009 ruling of Justice Hellen Omondi and found the substantive issues were not considered and finally determined. The former application was dismissed as defective for being made in the name of the Republic rather than the Applicant under Order 53, so the res judicata ingredients were not satisfied.

p. 4
02

Limitation of actions

Holding

The Petition and Judicial Review application were statutorily time-barred, depriving the court of jurisdiction.

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years. The dispute dates back to the directive of 30th June 2004, making the Petition some sixteen years late. Even treating the cause of action as arising from the NLC Gazette Notice of 17th July 2017, the challenge came twenty months later, well beyond the six months allowed by Order 53 Rule 2, with no extension of time sought.

p. 5

Legal principles established

#
  • Limitation goes to the jurisdiction of a court to entertain a claim; where a matter is statute-barred, the court has no jurisdiction.
  • A suit dismissed on a technicality or want of form is not res judicata as to the substantive issues, which were not heard and finally determined.
  • Challenges to decisions of bodies exercising quasi-judicial powers under Section 14 of the National Land Commission Act must be brought within the six months stipulated under Order 53 Rule 2 of the Civil Procedure Rules.

Court orders

#
  1. 1.Upheld the 1st Respondent's Notice of Preliminary Objection dated 15th March 2019
  2. 2.Struck out the consolidated Petition and Judicial Review application
  3. 3.Awarded costs to the 1st and 2nd Respondents

Authorities

#

Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 67(2)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 53 Rule 2
  • National Land Commission ActSection 14
  • Limitation of Actions ActSection 7

Cases cited (2)

  • Karia & Another -vs- The Attorney General and Others
    (2005) 1EA 83
  • Republic -vs- Kenya National Highways Authority & 2 Others ex-parte Amica Business Solutions Ltd
    (2016) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court) - not expressly stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "La Marina Limited v Nathan Kahara & 2 others [2020] KEELC 2337 (KLR)", Case Analysis (2020). Malindi ELC Petition No. 3 of 2019 (consolidated with Malindi ELC Misc. Civil Application No. 2 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2337/eng@2020-05-27

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