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ELCDismissedNot stated in judgment (application dated 23rd September 2019)· [2020] KEELC 3025 (KLR)

Annah Kimitei & 11 others v Erick Kibiwott Tarus & 51 others [2020] KEELC 3025 (KLR)

Environment and Land Court
23 April 2020
MOM. A. Odeny
1,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute suit survived an attempt to strike it out because the parallel High Court petition had already been struck out, leaving the Environment and Land Court as the proper forum.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Eldoret, delivered by M. A. Odeny, J on 23rd April 2020, determined a Notice of Motion dated 23rd September 2019 in which the defendants sought to strike out the plaintiffs' suit with costs. The defendants argued that the suit duplicated High Court Constitutional Petition No. 3 of 2019 concerning the same land, Sergoit River Farm LR No. 9723 (Kiplombe/Kiplombe/Block 11), that proceeding in both courts risked conflicting determinations and wasted judicial time, and that the ELC enjoys no exclusive jurisdiction under Article 162(2). The plaintiffs countered that section 13 of the ELC Act confers jurisdiction, that Article 165(5) bars the High Court from hearing land disputes, and that the defendants themselves were serial litigants over the same land, having filed multiple suits including Nairobi HCCC No. 90 of 2004, JR No. 89 of 2014, Eldoret ELC No. 47 of 2017 and the petition itself. The court noted that Justice Githinji in the High Court had, on 3rd March 2020, struck out Constitutional Petition No. 3 of 2019, holding that land disputes are a preserve of the ELC. Consequently no res judicata arose, the ELC was the proper forum, and, applying the D.T. Dobie principle that striking out is draconian and a last resort, the application lacked merit. It was dismissed with costs to the plaintiffs, and the parties were directed to comply with Order 11 and fix the suit for hearing.

Key legal issues

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01

Res judicata / duplication with High Court Petition No. 3 of 2019

Holding

Res judicata did not arise because the High Court petition had itself been struck out; there was no case heard and determined by a competent court

Reasoning

While preparing the ruling the court learned that Justice Githinji in the High Court had, on 3rd March 2020, struck out Constitutional Petition No. 3 of 2019, holding that land matters are a preserve of the ELC. With that petition gone, no determination by a competent court existed to found res judicata, and no obstacle remained to hearing the present suit in the ELC.

p. 2
02

Whether the suit should be summarily struck out

Holding

The application to strike out failed; a suit showing even a semblance of a cause of action should be sustained

Reasoning

Applying the D.T. Dobie principle, the court held that striking out is draconian and should be used sparingly; a suit ought not be summarily dismissed unless it is hopeless, discloses no reasonable cause of action and is incurable by amendment. The defendants did not satisfy that threshold.

p. 2
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Jurisdiction over the suit land

Holding

The ELC is the proper and proper-seated court to deal with disputes over the suit land

Reasoning

Following the High Court's own ruling that only the ELC is clothed with jurisdiction over land matters concerning use, occupation and title to land, the court held that this suit lies in the proper forum and could proceed.

p. 2

Legal principles established

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  • The ELC is the proper court to determine land matters concerning ownership, occupation and title to land
  • Striking out is a draconian measure to be applied sparingly

Court orders

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  1. 1.The defendants' application dated 23rd September 2019 is dismissed with costs to the plaintiffs
  2. 2.Parties to comply with Order 11 and fix the matter for hearing

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 165(5)
  • Constitution of KenyaArticle 159
  • Environment and Land Court ActSections 13(1) and (2)
  • Civil Procedure Rules (Order 11 compliance direction)Order 11

Cases cited (1)

  • D.T. Dobie & Company (Kenya) Limited vs Joseph Mbaria Muchina & another
    [1980] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and sections 13(1) and (2) of the Environment and Land Court Act

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, "Annah Kimitei & 11 others v Erick Kibiwott Tarus & 51 others [2020] KEELC 3025 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 23rd September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3025/eng@2020-04-23

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