James Kiswa Murkuk & another v Johana Kiplang’at Koros & 4 others [2021] KEELC 2643 (KLR)
The bottom line
#A Kenyan court refused to throw out a land dispute because the earlier case was dismissed without ever being heard, so the fight continues.
What this practically means
#Executive summary
#Key legal issues
#Finality of the Minister's decision
The Minister's decision confirming the committee ruling was final as between the adjudication parties, with judicial review as the only avenue of challenge, subject to the six-month certiorari limit
The court perused the Minister's Appeal No. 135 of 1997 proceedings and the Director of Land Adjudication's confirmation of the ruling of 11 November 2003 as final. Guided by Section 29 of the Land Adjudication Act, which makes the Minister's order final, and Order 53 rule 2 of the Civil Procedure Rules limiting certiorari to six months, the court held the decision final and challengeable only by judicial review.
Res judicata
The suit is not res judicata because the former suit (Kisii HCCC 129 of 2003) was dismissed for want of prosecution and was never heard and determined on the merits, and the parties, claims and prayers differ
Comparing the parties, claims and prayers in HCCC 129 of 2003 with the present suit, the court found separate parties, claims and prayers. Section 7 of the Civil Procedure Act requires the matter to have been heard and finally decided; a dismissal for want of prosecution does not satisfy this. The Minister's appeal did not involve the present Plaintiffs. The application therefore failed.
Costs
Each party to bear its own costs
Having declined the striking-out application, the court exercised its discretion on costs in favour of no order against either party.
Legal principles established
#- A suit dismissed for want of prosecution is not 'heard and finally decided' and cannot found a plea of res judicata
- An order operating as res judicata must have been a determination of an aspect of the controversy, not a mere direction on the manner of process
- The Minister's order under Section 29 of the Land Adjudication Act is final, but a dissatisfied party may pursue judicial review within the limits of Order 53 rule 2
Court orders
#- 1.The Notice of Motion dated 16th September 2019 seeking striking out of the suit as res judicata is declined/dismissed.
- 2.Each party to bear its own costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application brought under Section 7 of the Civil Procedure Act and the inherent jurisdiction of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kiswa Murkuk & another v Johana Kiplang’at Koros & 4 others [2021] KEELC 2643 (KLR)", Case Analysis (2021). ELC 394 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2643/eng@2021-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.