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ELCDismissedNot stated in judgment (Environment and Land Court suit, Mombasa)· [2021] KEELC 4385 (KLR)

Hassan Mastajabu & another v Chief Land Registrar Kwale & 3 others [2021] KEELC 4385 (KLR)

Environment and Land Court
10 February 2021
MSMunyao Sila
2,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land ownership suit because the same dispute had already been fully decided in earlier cases.

What this practically means

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Executive summary

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The plaintiffs, claiming ownership of Kwale/Galu Kinondo/339 through ancestral rights, sued the Chief Land Registrar Kwale, the National Land Commission, and the 3rd and 4th defendants (who purchased the land from Mutuku Ngei in 2007), seeking a permanent injunction and a declaration of ownership. The 3rd and 4th defendants filed a preliminary objection dated 20 July 2020 arguing the suit is res judicata. They relied on four prior cases concerning the same land: Mombasa PMCC No. 350 of 1990 and its appeal HCCA No. 113 of 1994, in which the title of Mutio (predecessor of Mutuku Ngei) was upheld against Mwakilisha (father of the 1st plaintiff); Misc. Civil Application No. 110 of 2005; and HCCC No. 52 of 2007, in which Sergon J struck out the defence of Mastajabu Athumani Suleiman, holding the fraud issue had been decided. The defendants also cited Constitutional Petition No. 35 of 2015, in which the court barred the NLC and Kwale County from investigating title to private land. Applying Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai elements of res judicata, the court held the suit re-litigated issues already finally determined between predecessors in title of the parties. The preliminary objection was upheld and the suit dismissed with costs to the defendants.

Key legal issues

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01

Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

Yes. The ownership issue was directly and substantially in issue in former suits between the same parties or their predecessors in title, litigating under the same title, before competent courts, and was finally determined.

Reasoning

The court examined the four prior cases and the constitutional petition. The prior cases between Mwakilisha, Mutio and Mutuku Ngei — the predecessors of the parties — finally determined entitlement to the same land. The plaintiffs' claim of ancestral rights is the same cause of action; the defendants are successors in title to Mutuku Ngei. Re-litigation is barred regardless of how the pleadings are couched.

p. 3

Legal principles established

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  • A party cannot re-litigate ownership of land already determined between predecessors in title litigating under the same title; such a suit is barred by res judicata.

Court orders

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  1. 1.The preliminary objection by the 3rd and 4th defendants is upheld
  2. 2.The suit is dismissed
  3. 3.Costs of the suit to the defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hassan Mastajabu & another v Chief Land Registrar Kwale & 3 others [2021] KEELC 4385 (KLR)", Case Analysis (2021). Not stated in judgment (Environment and Land Court suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4385/eng@2021-02-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.