Hassan Ahmednur Baricha & 7 others v Chief Land Registrar & 5 others [2021] KEELC 2222 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that residents' associations can sue to protect members' land rights under the 2010 Constitution.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata by virtue of Nairobi HCCC No. 36 of 2007 (Safi Petroleum Products Limited v Abdirahman Abdi)
The plea of res judicata fails: the 4th Respondent is not shown to be connected to that suit, and no final determination of the issues was made there.
Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue was decided by a competent court between the same parties. The two rulings attached from HCCC No. 36 of 2007 concerned instructions to a law firm and joinder of parties, not the ownership dispute. The 4th Respondent's name does not appear in those suits and no nexus with Safi Petroleum Products Limited was shown.
Whether the Petitioners have locus standi and authority to institute the petition on behalf of the estate residents
The Petitioners have standing under Article 22 of the Constitution, and the written authority filed shows many proprietors signed; pre-2010 authorities on locus standi do not apply.
Article 22(2) of the Constitution and Rule 4(2) of the Mutunga Rules permit a person acting as a member of, or in the interest of, a group or class of persons, or an association acting in the interest of its members, to institute proceedings. The authority to represent attached to the petition bears the signatures of many proprietors, and the authorities relied on by the 4th Respondent predate the 2010 Constitution.
Whether the certificates of title are registered in the name of Abdirahman Abdi rather than the Petitioners
The contention fails; the exhibited titles show transfer to various persons duly entered in the certificates.
The certificates of title exhibited in the petition were initially issued to Abdirahman Abdi but were later transferred to various persons, with the transfers entered in the certificates of title. The court therefore rejected the 4th Respondent's assertion that the titles remained registered in Abdirahman Abdi's name.
Legal principles established
#- Article 22 of the Constitution, as read with the practice and procedure rules, expanded locus standi and allows a group or association acting in the interest of a group to institute proceedings alleging violation of rights
- A party asserting res judicata must demonstrate that a final determination of the issues was made in a former suit between the same parties
Court orders
#- 1.The preliminary objection raised by the 4th Respondent is dismissed with costs to the Petitioners
- Jurisdiction invoked
- Article 22 of the Constitution; Environment and Land Court Act, the Land Registration Act, the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Ahmednur Baricha & 7 others v Chief Land Registrar & 5 others [2021] KEELC 2222 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2222/eng@2021-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.