Ambrosiah Nditi Muli v Chief Land Registrar & 15 others [2020] KEELC 3044 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a preliminary objection, allowing a widow's land rights petition over 40 parcels to proceed to full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
The Petition is not res judicata because the previous suits were either never heard and determined or were dismissed for want of prosecution, and none were decided on merit.
Section 7 of the Civil Procedure Act requires that the matter in issue in a former suit between the same parties have been heard and finally decided. The court perused the previous files: Nairobi HCCC No. 2346 and 2347 of 1978 were consolidated but never heard and determined, and Machakos ELC No. 78 of 2009 was dismissed for want of prosecution. As none of the matters in controversy were decided on merit, the essential elements of res judicata were not satisfied.
Whether the Petition is sub judice
The Petition is not sub judice in relation to Nairobi ELC No. 2345 of 1978, ELC No. 2346 of 1978 and Machakos ELC No. 78 of 2009.
Having found that the previous suits were not heard and determined on merit, and that the issues raised in the Petition portend a difference in account of events requiring evidence, the court found the Petition could not be said to raise the same issues as the Petitioner's late husband's previous suits. Any such finding could only be arrived at after trial.
Whether the Petition is premature for failure to exhaust remedies before the National Land Commission
The Petition is not premature; the court and the National Land Commission have concurrent original jurisdiction over historical land injustice claims.
Relying on the Court of Appeal decision in Chief Land Registrar & 4 Others v Nathan Tirop Koech, the court held that a court has jurisdiction to hear and determine any claim relating to historical injustice whether or not the National Land Commission is seized of the matter. Further, the Petitioner's claim is not a historical injustice claim per se.
Legal principles established
#- The Environment and Land Court has original jurisdiction alongside the National Land Commission to deal with disputes relating to historical land injustice; a claimant need not first exhaust remedies before the Commission.
- A plea of res judicata can be determined on a preliminary objection only if the pleadings and decision in the previous suit are before the court, which the court may itself call for.
- Suits dismissed for want of prosecution have not been heard and finally decided on the merits and cannot found a plea of res judicata.
Court orders
#- 1.The Respondents' Notice of Preliminary Objection dated 10th September, 2018 is dismissed
- 2.The Notice of Preliminary Objection is dismissed with costs to the Petitioner
- Jurisdiction invoked
- Article 40 and Article 22 of the Constitution; Environment and Land Court jurisdiction under the National Land Commission Act, Section 15(3)(b)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ambrosiah Nditi Muli v Chief Land Registrar & 15 others [2020] KEELC 3044 (KLR)", Case Analysis (2020). Petition dated 31st July, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3044/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.