Isaac Mugo Kamu & 10 others v Stephen Gitau Ikere & 2 others [2021] KEELC 4050 (KLR)
The bottom line
#The court dismissed a land dispute filed as a constitutional petition because the same issues had already been finally decided years earlier.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The petition is res judicata as the same issues of allotment, acreage, occupation and trespass between the same parties or those claiming under them were finally determined in HCCC No.395 of 1997
The court compared the judgment and issues in HCCC No.395 of 1997 with the petition and found they raised the same issues of allotment, occupation and ownership of parcels 430 and 431. The 2nd to 14th petitioners were children claiming under the 1st petitioner, who had represented the family's interest. Enjoining the AG and Commissioner of Lands did not alter the identity of the dispute. Judicial review application by the 1st petitioner had been dismissed.
Threshold of a constitutional petition
The issues, though dressed as constitutional issues, are land disputes that do not satisfy the constitutional petition threshold (Anarita Karimi Njeru)
The court found the petition re-packages a land dispute as a rights violation; the issues had already been litigated and the alleged violations were of the kind determined in the earlier suit. The Attorney General had raised the Anarita Karimi Njeru threshold, and the court was not satisfied the matters presented were genuinely constitutional issues.
Jurisdiction to quash a judgment of a concurrent court
This court has no jurisdiction to quash the judgment of the High Court in HCCC No.395 of 1997, a court of concurrent jurisdiction
The court held that the High Court judgment was a final decision which could only be varied on review or set aside on appeal to a higher court. A judge of equal standing cannot exercise supervisory authority over another's judgment, and the 1st petitioner's options were appeal or review, the review having been dismissed.
Legal principles established
#- The doctrine of res judicata is not a procedural technicality but goes to jurisdiction, and applies to constitutional petitions notwithstanding Article 159(2)(d)
- A court cannot sit on appeal over, or quash, the judgment of a court of concurrent jurisdiction; such judgment can only be varied or set aside on review or appeal to a higher court
- Parties cannot evade res judicata by adding new parties or causes of action to a subsequent suit
Court orders
#- 1.The petition is dismissed
- 2.Any conservatory orders that may have been granted are vacated
- 3.The costs of the petition are awarded to the 1st respondent
- Jurisdiction invoked
- Article 22 and 23 of the Constitution (enforcement of Bill of Rights); land dispute over LR Nyandarua/South Kinangop/430 and 431
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Mugo Kamu & 10 others v Stephen Gitau Ikere & 2 others [2021] KEELC 4050 (KLR)", Case Analysis (2021). Petition dated 7th December 2011 (amended 30th October 2018), Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4050/eng@2021-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.