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ELCPartially AllowedEnvironment and Land Court Appeal Number 43 of 2021· [2021] KEELC 205 (KLR)

Benedict Obat & 3 others v Pius Onyango Obat [2021] KEELC 205 (KLR)

Environment and Land Court
30 November 2021
3,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Siaya against the judgment of Hon. C.N. Sindani, SRM, delivered on 9 September 2020 in Ukwala PM ELC No. 70 of 2018, which declared the respondent the lawful owner of Uholo/Magoya/221 and issued a permanent injunction against the appellants and the 1st defendant. The land had been adjudicated and registered in favour of five members of Achuorwa's house as tenants in common. Siaya Land Disputes Tribunal Case 103/2005, brought by Uduny Otieno (the 1st defendant), ordered cancellation of the registration and re-survey; that decision was adopted as a judgment of the court on 14 December 2006 in Siaya PM Land Case No. 94 of 2006. During the 2018 suit, the parties recorded a consent of 9 September 2019 excising and selling 12.49 acres to a third party. On appeal, the appellants argued res judicata and that the suit property had been extinguished by the consent, and that the property was a tenancy in common. The court framed three issues: res judicata, validity of the consent order, and ownership. Holding that the adopted tribunal judgment had never been appealed, quashed or set aside, the court found the 2018 suit res judicata; consequently, all ensuing orders, including the consent, were invalid. It further found the property a tenancy in common whose deceased co-owners' shares devolved on their estates, not on the respondent. The court allowed the appeal and set aside the lower court's judgment and decree in their entirety, with each party bearing their own costs.

Key legal issues

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01

Whether the lower court suit was res judicata by virtue of Siaya Land Disputes Tribunal case 103/2005 adopted as judgment in Siaya PM Land Case No.94 of 2006

Holding

The suit was res judicata: the tribunal decision was adopted as a judgment of a competent court, covered the same subject matter and causes of action (ownership and occupation), and was never successfully appealed, quashed or set aside.

Reasoning

The tribunal, on whose claim the 1st defendant (not appealing) was claimant and the respondent was 1st objector, determined ownership and occupation of the suit property on merit. Its decision was adopted as a judgment on 14/12/2006. Under section 7(2) of the Land Disputes Tribunals Act and section 23(3)(e) of the Interpretation and General Provisions Act, the adopted judgment was preserved and enforceable, and the Supreme Court's decision in Nyaboke binds this court.

p. 4
02

Whether the consent order dated 9/9/2019 was valid

Holding

The consent order and all ensuing proceedings were invalid because the suit itself was res judicata.

Reasoning

Having found the lower court suit res judicata, all proceedings and orders flowing from it, including the consent order adopted on 9/9/2019, are invalid. Res judicata operates as a complete jurisdictional estoppel that cannot be circumvented by consent of the parties, per Lal Chand v Radha Kisham as quoted with approval in the Maina Kiai case.

p. 4
03

Whether the respondent is the lawful owner of the suit property

Holding

No. The suit property is held as a tenancy in common; the death of co-owners did not devolve their shares on the respondent but on their respective estates, and such a tenancy can only be determined by unity of interests, partition or sale.

Reasoning

Sections 91(5) and 96 of the Land Registration Act and Halsbury's Laws (paras 222 & 223, Vol 87) show that on the death of a tenant in common the deceased's share forms part of his estate. The respondent's own share was unaffected, but he could not acquire the deceased co-owners' shares by operation of law. The trial court therefore erred in declaring him sole absolute owner.

p. 4
04

Whether the Court of Appeal decision in Chemei v Kimotuk applied to this appeal

Holding

Distinguished; the Supreme Court's Nyaboke decision binds both the Court of Appeal and this court.

Reasoning

In Chemei, the appellant had sought a declaration that tribunal proceedings and the subsequent judgment were null and void for want of jurisdiction, whereas here the respondent sought injunctive and declaratory ownership orders. The circumstances differ, and the Supreme Court's settled jurisprudence on adopted tribunal awards binds the Court of Appeal and this court.

p. 3

Legal principles established

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  • Once a Land Disputes Tribunal decision is adopted as a judgment of a competent court and is not appealed, quashed or set aside, it becomes a valid court judgment and renders subsequent suits on the same subject matter res judicata.
  • Res judicata is a complete estoppel that cannot be circumvented even by consent of the parties, and proceedings and orders ensuing from a suit barred by res judicata, including consent orders, are invalid.
  • A tenancy in common can only be determined by union of the various interests, partition or sale; the death of a co-tenant does not devolve his share on a surviving co-owner but on his estate.

Court orders

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  1. 1.Allowed the appeal and set aside in entirety the judgement and decree in Ukwala Principal Magistrates ELC Number 70 of 2018
  2. 2.Each party to bear their own costs of the appeal and the lower court

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Disputes Tribunal Act (repealed)Sections 3(1), 7 and 8
  • Interpretation and General Provisions ActSection 23(3)(e)
  • Land Registration ActSections 22, 24(a), 26(1), 42, 91(4), 91(5) and 96
  • Land Registration (Regulations) ActRegulation 43

Cases cited (18)

  • Paul Muraya Kaguri vs Simon Mbaria Muchunu
    [2015] eKLR
  • Independent Electoral and Boundaries Commission v Maina Kiai
    [2017] eKLR
  • E.T.V vs Attorney General & Another
    (2012) eKLR
  • Muhuri Muchiri vs Hannah Nyamunya (sued as the Administrator of the Estate of Njenga Muchiri also Known as Samuel Njenga Muchiri (deceased)
    (2015) eKLR
  • John Florence Maritime Services Limited & Ano. V Cabinet Secretary Transport and Infrastructure & 3 Others
    (2021) eKLR
  • David Chemei vs Kanamoi Cheptoo Kimoituk & Another
    (2021) eKLR
  • Isabel Chelangat vs Samuel Tiro Rotich & 5 Others
    (2012) eKLR
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Barnabas Biwott v Thomas Kipkorir Bundotich
    [2018] eKLR
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2015] eKLR
  • Alfred Sagero Omweri v Kennedy Omweri Ondieki
    [2015] eKLR
  • R v. Chairman Land Disputes Tribunal, Kirinyaga District & Another Ex parte Kariuki
    (2005) 2 KLR 10
  • Rift Valley Enterprises Ltd v Antony Michael Hughes (Sued as Administrator of the Estate of Alexandra Theresa Hughes (Deceased) & 2 others
    [2020] eKLR
  • David Kipleting Chemei vs Kanamoi Cheptoo Kimotuk and Another
    (2021) eKLR
  • Lal Chand vs. Radha Kisham
    AIR 1977 SC 789
  • Rose Njeri Munoru & 13 others v Hannah Mwihaki Muturi & 4 others
    [2016] eKLR
  • Omondi V National Bank of Kenya Ltd & Others
    [2001] EA 177
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    SC. Petition No. 4 of 2012: [2014] eKLR
On appeal from
Ukwala Principal Magistrates Court (Senior Resident Magistrate Hon. C.N. Sindani)
Ukwala Principal Magistrates ELC Number 70 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over the appeal from Ukwala Principal Magistrates ELC Number 70 of 2018

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, "Benedict Obat & 3 others v Pius Onyango Obat [2021] KEELC 205 (KLR)", Case Analysis (2021). Environment and Land Court Appeal Number 43 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/205/eng@2021-11-30

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