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ELCStruck OutELC JR Case No. E005 of 2021· [2021] KEELC 415 (KLR)

Njeru Mairani & 2 others v Director of Land Adjudication & Settlement & 3 others [2021] KEELC 415 (KLR)

Environment and Land Court
14 December 2021
CYC. K. Yano
3,481 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Chuka struck out a land adjudication judicial review case because the same parties had already litigated the same issues and lost.

What this practically means

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Executive summary

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The applicants, chairmen of Mbeere clans, sought judicial review orders of mandamus, certiorari and prohibition against land adjudication officers over Kamaindi and Kamwimbi 'B' Adjudication sections. They complained that the notice of demarcation and survey dated 17th February 2021 failed to fix the period for presenting claims, and that on 21st June 2021 the recording officer refused to receive their clan group claims on instructions from the Land Adjudication Officer. They invoked an earlier judgment in ELC JR Case No. 16 of 2017 (Njeru Mairani & 2 Others v The A-G & 4 Others), delivered on 18th December 2018, which found discrimination and permitted the issuance of a fresh declaration that did not breach their constitutional rights. The respondents opposed through grounds of opposition and a replying affidavit by C.K. Mbui, arguing res judicata, prematurity under section 29(3) of Cap 284, and failure to exhaust the statutory adjudication procedures; they contended the re-declaration was issued on 17th October 2019, demarcation was completed and registers published. The court framed two issues: whether the application was res judicata, and if not, whether the orders sought were available. Applying section 7 of the Civil Procedure Act and the test in E.T. v Attorney General, the court found the parties substantially the same and the reliefs substantially identical to those in the earlier suit, which had been determined on the merits by a competent court. The court held the applicants were relitigating in instalments and misusing the process of court in a manner that could derail execution of the earlier decree. The notice of motion dated 22nd September 2021 was struck out with costs to the respondents.

Key legal issues

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01

Whether the judicial review application is barred by res judicata under section 7 of the Civil Procedure Act

Holding

The application is res judicata: the parties were substantially the same, the remedies sought were substantially the same as in ELC JR Case No. 16 of 2017 which was heard and determined on the merits by a competent court, and the applicants were improperly attempting to relitigate settled issues.

Reasoning

The court compared the parties and reliefs in the former suit with the present one. The applicants were the same; the respondents were substantially the same, with only minor differences in the parties named. Both suits sought judicial review orders over claims to the same lands in Kamaindi and Kamwimbi 'B' Adjudication sections. The former suit had been heard and determined on the merits by Justice P.M. Njoroge on 18th December 2018. The applicants had merely given their earlier suit a face lift, and instituting the present suit risked derailing execution of the earlier decree.

p. 4
02

Whether the application constitutes an abuse of the court process

Holding

Yes - instituting the present suit was an abuse of process and may derail execution of the decree in JR No. 16 of 2017.

Reasoning

The court held that parties must not be allowed to litigate endlessly on the same issues, reopening matters already settled. The court found the applicants had misused court process to reopen decided issues and that their action could derail execution of the earlier decree.

p. 4
03

Whether the availability of the judicial review orders needed consideration

Holding

The court did not reach the question, having resolved the suit on res judicata.

Reasoning

Having found the application res judicata and abusive, the court struck it out without determining whether mandamus, certiorari or prohibition would otherwise be available. The second framed issue was therefore not decided.

p. 4

Legal principles established

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  • Parties cannot evade the doctrine of res judicata by merely adding or removing parties or causes of action in a subsequent suit; litigation must come to an end.

Court orders

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  1. 1.The notice of motion application dated 22nd September 2021 struck out with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Land Adjudication Act (Cap 284)sections 5(2)(c), 19(4), 25(c), 26(1), 29(3)
  • Fair Administrative Action Act

Cases cited (2)

  • E.T. -v- Attorney General & Another
    [2012] eKLR
  • Karia & Another -v- The Attorney General and Others
    (2005) 1 EA 83, 89
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act and Fair Administrative Action Act following leave granted on 20th September 2021; article 47 fair administrative action invoked by applicants

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, "Njeru Mairani & 2 others v Director of Land Adjudication & Settlement & 3 others [2021] KEELC 415 (KLR)", Case Analysis (2021). ELC JR Case No. E005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/415/eng@2021-12-14

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