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ELCDismissedNot stated in the ruling (Minister's Land Appeal Case No. 63 of 1984 referenced as the former suit)· [2020] KEELC 2395 (KLR)

Agnes Kivindu Kisilu & 2 others v Steven Kivevo & 3 others [2020] KEELC 2395 (KLR)

Environment and Land Court
28 May 2020
CMC. G. MBOGO
840 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Minister's land appeal decision does not count as a court ruling, so an old administrative decision cannot block a fresh land dispute from being heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Makueni (Mbogo, J) determines a preliminary objection dated 27th May 2019 by the 1st and 2nd Defendants, who contended that a suit concerning land parcels Kiteta/Kasuswi/459 and Kiteta/Kasuswi/1091 was res judicata by virtue of Minister's Land Appeal Case No. 63 of 1984, decided on 20th December 1985, in which ownership of Kiteta/Kasuswi/459 was finally determined. The Defendants argued the parties and issues were the same, no new issues were raised, and the suit was an abuse of court process. The objection was disposed of by written submissions; only the Defendants filed submissions. The Court distilled a single issue: whether the Minister sitting in appeal under section 29 of the Land Adjudication Act (Cap 284) is a court of competent jurisdiction for purposes of res judicata. Examining the definition of 'court' in section 2 of the Civil Procedure Act (the High Court or subordinate court exercising civil jurisdiction, extended by section 7(1) of the Sixth Schedule of the Constitution to courts of equal status) and section 2 of the Interpretation of the General Provisions Act, the Court held that the Minister's administrative appeal is not a court of competent jurisdiction. Consequently, the prior Minister's determination could not render the suit res judicata. The Court dismissed the preliminary objection and made no order as to costs because the Plaintiffs had not filed responses to the objection. The effect is that the substantive suit over the land parcels proceeds to hearing.

Key legal issues

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Whether the Minister's Land Appeal Case No. 63 of 1984 renders the suit res judicata

Holding

The Minister sitting in appeal under section 29 of the Land Adjudication Act is not a court of competent jurisdiction, so the suit is not res judicata.

Reasoning

Section 2 of the Civil Procedure Act defines a 'court' as the High Court or a subordinate court exercising civil jurisdiction, which by section 7(1) of the Sixth Schedule of the Constitution includes courts of equal status. Section 2 of the Interpretation of the General Provisions Act defines a court as any court of Kenya of competent jurisdiction. Reading these definitions together, an administrative appeal to the Minister does not qualify as a court of competent jurisdiction, and therefore the prior Minister's appeal cannot ground res judicata.

p. 2

Legal principles established

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  • A Minister deciding an appeal under section 29 of the Land Adjudication Act is not a court of competent jurisdiction within the meaning of section 2 of the Civil Procedure Act, so his decision cannot found a plea of res judicata

Court orders

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  1. 1.The 1st and 2nd Defendants' Notice of Preliminary Objection dated 27th May, 2019 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 2 (definition of 'court')
  • Civil Procedure Actsection 7
  • Constitution of Kenya, 2010section 7(1) of the Sixth Schedule
  • Land Adjudication Actsection 29
  • Interpretation of the General Provisions Actsection 2 (definition of 'court')

Cases cited (1)

  • E.T vs. Attorney General & Another
    [2012] eKLR
Jurisdiction invoked
Not expressly invoked; the Court determined a preliminary objection under section 2 and section 7 of the Civil Procedure Act (res judicata)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Agnes Kivindu Kisilu & 2 others v Steven Kivevo & 3 others [2020] KEELC 2395 (KLR)", Case Analysis (2020). Not stated in the ruling (Minister's Land Appeal Case No. 63 of 1984 referenced as the former suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2395/eng@2020-05-28

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