Robinson Nalengeyo Ole Torome & 7 others v Kedong Ranch Limited & 3 others [2021] KEELC 4032 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a Maasai community land petition because the same dispute had already been decided, confirming you only get one chance to litigate.
What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection as a pure point of law
The objection is a valid preliminary objection notwithstanding the petitioners' claim that contested facts required determination, because the existence and outcome of the prior High Court petition are ascertainable from the Kenya Law Reports without taking evidence
The court reasoned that the petitioners themselves acknowledged Nakuru High Court Petition No. 57 of 2014 was filed. Judgments of superior courts of record are published in the Kenya Law Reports pursuant to the National Council for Law Reporting Act, 1994, so ascertaining the issues and outcome requires no evidence. Insisting otherwise would over-emphasise procedural technicalities contrary to Sections 1A and 1B of the Civil Procedure Act, Section 3 of the ELC Act and Article 159(2). Since res judicata, if successful, would dispose of the entire petition, the objection was proper.
Identity of parties - whether the petitioners litigate under the same title as the petitioners in Nakuru High Court Petition No. 57 of 2014
The parties are the same: the 2nd and 7th petitioners herein were petitioners in the prior suit, and all petitioners claim on behalf of themselves and over 30,000 members of the Maasai Community, bringing them within Explanation (6) to section 7 of the Civil Procedure Act
The court compared the descriptions of the parties in both petitions. In the prior petition the claimants sued on their own behalf and on behalf of families and over 30,000 members of the Maasai Community residing on parcel No. 8396 (I.R No. 111977). The present petitioners describe themselves identically. By their own description and pursuant to Explanation (6) of section 7, they claim under the actual petitioners in the former suit, satisfying the party-identity element of res judicata.
Identity of issues and finality - ownership and occupation of L.R No. 8396 (I.R No. 11977)
The core reliefs in the present petition are the same as those in the prior petition, and ownership of the suit property was conclusively determined by Munyao Sila J, who held the land became private land of the 1st respondent in 1950 and is not community land
Both petitions sought declarations of lawful occupation on account of ancestral/communal land and cancellation of titles. The prior petition was dismissed, the court holding the leasehold land registered in Kedong Ranch's name was private land, not public or community land, regardless of ancestral claims. The issue of ownership was thus conclusively determined; the petitioners cannot have another bite at the cherry.
Legal principles established
#- For a preliminary objection to be valid it must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
- The existence and outcome of a case in a superior court of record may be ascertained by perusal of the Kenya Law Reports without taking evidence, and does not convert a preliminary objection into a contested question of fact
- Elements of res judicata: a previous suit in which the matter was in issue, same parties or parties litigating under the same title, heard and finally determined by a competent court, and the issue raised again in the new suit
- Res judicata applies to constitutional petitions and operates as a complete estoppel allowing a litigant only one bite at the cherry
Court orders
#- 1.The Notice of Preliminary Objection dated 22nd November 2019 is upheld
- 2.The petition herein is struck out for being res judicata
- 3.Costs are awarded to the respondents
- Jurisdiction invoked
- Article 162(2)(b) Constitution / Environment and Land Court Act (court seized of petition over land); jurisdiction to strike out for res judicata under section 7 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mkupuo Network Awareness v Cabinet Secretary Ministry of Lands and Physical Planning & 4 others (Environment & Land Petition 43 of 2020) [2023] KEELC 354 (KLR)[2023] KEELC 354 (KLR)27 Jan 2023applied
Cite this brief
#Cite this brief
Caselaw, "Robinson Nalengeyo Ole Torome & 7 others v Kedong Ranch Limited & 3 others [2021] KEELC 4032 (KLR)", Case Analysis (2021). Petition (Environment and Land Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4032/eng@2021-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.