Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutPetition (Environment and Land Court, Nakuru)· [2021] KEELC 4032 (KLR)

Robinson Nalengeyo Ole Torome & 7 others v Kedong Ranch Limited & 3 others [2021] KEELC 4032 (KLR)

Environment and Land Court of Kenya
11 March 2021
3,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
This ruling of the Environment and Land Court at Nakuru (D. O. Ohungo J, 11 March 2021) dealt with the petitioners' Notice of Motion dated 29th October 2020 seeking interim injunctive relief in respect of L.R 8396 (I.R 11977), commonly known as Kedong Ranch, and the 1st respondent's Notice of Preliminary Objection dated 22nd November 2019. The petitioners, Maasai community members claiming on behalf of over 30,000 residents, alleged deprivation of ancestral and communal land through successive transfers, subdivision, compulsory acquisition for the Standard Gauge Railway and a proposed Naivasha dry port without compensation. The 1st respondent objected that the petition was res judicata, the ownership issue having been finally determined in Nakuru High Court Petition No. 57 of 2014 (Parkire Stephen Munkasio & others v Kedong Ranch Limited & others), where Munyao Sila J dismissed the petition and held the land became private land in 1950. The court first held that the objection was a valid preliminary objection raising a pure point of law, since the existence and outcome of the prior suit could be ascertained from the Kenya Law Reports without taking evidence. It then found the parties identical or claiming under the same title, and the core reliefs the same as those in the prior petition. Upholding the objection, the court struck out the petition as res judicata, awarded costs to the respondents, and consequently did not consider the interlocutory application.

Key legal issues

#
01

Validity of the preliminary objection as a pure point of law

Holding

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

Reasoning

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.

p. 3
02

Identity of parties - whether the petitioners litigate under the same title as the petitioners in Nakuru High Court Petition No. 57 of 2014

Holding

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

Reasoning

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.

p. 4
03

Identity of issues and finality - ownership and occupation of L.R No. 8396 (I.R No. 11977)

Holding

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

Reasoning

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.

p. 4

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. 1.The Notice of Preliminary Objection dated 22nd November 2019 is upheld
  2. 2.The petition herein is struck out for being res judicata
  3. 3.Costs are awarded to the respondents

Authorities

#

Legislation

  • Civil Procedure Act, Cap 21Section 7 (including Explanation (6))
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 1 rule 8(2)
  • Environment and Land Court ActSection 3
  • National Council for Law Reporting Act, 1994Sections 2, 3 and 19
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (12)

  • Mukisa Biscuit Manufacturers Ltd vs. West End Distributors Ltd
    [1969] E.A 696
  • Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others
    [2015] eKLR
  • Margaret Nyiha Gatambia & 2 Others v Peninah Ngechi Njaaga & 3 Others
    [2019] eKLR
  • Quick Enterprises Ltd vs. Kenya Railways HCCC No. 22 of 1999 as cited in Hannah Wanja Njenga Njenga & Another v Peter Kiarie Warui & 4 Others
    [2019] eKLR
  • Law Society of Kenya vs. The Commissioner of Lands
    [2003] KLR
  • Lawrence Sese & 5 Others v Jeremiah Otieno Okenye & Others
    [2009]
  • Republic v City Council of Nairobi & 2 Others
    [2014] eKLR
  • Siri Ram Kaura vs. M J E Morgan
    Civil Application No. 71 of 1960 [1961] EA 462
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another
    [2016] eKLR
  • Parkire Stephen Munkasio & 14 others (suing on their own behalf and behalf of their families and all the members of the maasai community living on land reference no.8396 (i.r 11977) situated in kedong) v Kedong Ranch Limited & 8 others
    [2015] eKLR (Nakuru High Court Petition No. 57 of 2014)
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.

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.