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ELCDismissedNot stated in the judgment (ruling on defendants' notice of preliminary objection dated 19th September, 2018)· [2021] KEELC 4423 (KLR)

Mohamed Swaleh Fumo v Bakari Farah & another [2021] KEELC 4423 (KLR)

Environment and Land Court
1 February 2021
CYC.K. Yano
1,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear land disputes between Muslims, ruling that a Kadhi's Court estate distribution does not block a trespass claim.

What this practically means

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Executive summary

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This is a ruling on the defendants' preliminary objection dated 19th September 2018 seeking to strike out or dismiss the plaintiff's suit on two grounds: that the Environment and Land Court lacks jurisdiction because all parties are Muslims and the matter falls under Kadhi's Court personal law, and that the suit is res judicata by reason of the Kadhi's Court decision in Mombasa Succession Cause No. 21 of 2006, in which the estate of Saada Muhaji Masud (the plaintiff's mother) was distributed on 17th March 2010 with a further ruling on 7th July 2010. The plaintiff countered that the Kadhi's Court only determined heirs and distributed the estate, whereas the present suit concerns trespass by the defendants, owners of Plot No. 6400/I/MN, into his Plot No. 6401/I/MN, a land dispute for the ELC. The court applied Section 7 of the Civil Procedure Act, Section 28 of the ELC Act and the John Florence Maritime formulation of res judicata, and held that the issues before it were not the same as those finally determined by the Kadhi's Court, which could not legally have determined boundary and trespass questions. On jurisdiction, the court relied on Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, which confer jurisdiction over land disputes including boundaries. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the suit is res judicata in light of Kadhi's Court Succession Cause No. 21 of 2006

Holding

The suit is not res judicata because the issues before the ELC (trespass/encroachment on Plot No. 6401/I/MN) are not the same as those determined in the Kadhi's Court (heirship and distribution of the estate), which was therefore not a final determination of the present issues on the merits.

Reasoning

Applying Section 7 of the Civil Procedure Act and Section 28 of the ELC Act, and the John Florence Maritime formulation of the doctrine, the court asked whether the issues are the same and whether they received final determination. The Kadhi's Cause was a petition for determination of heirs and distribution of the estate under Muslim law. The present suit concerns trespass and ownership of specific plots, issues of a different form which a Kadhi's court could not legally determine. Res judicata therefore does not apply.

p. 2
02

Whether the Environment and Land Court lacks jurisdiction because all parties are Muslims and the matter is said to fall under Kadhi's Court personal law

Holding

The ELC has jurisdiction. Under Article 170(5) the Kadhi's Court's jurisdiction is limited to questions of Muslim law on personal status, marriage, divorce or inheritance; the present dispute over trespass to and boundaries of land falls squarely within Article 162(2)(b) and Section 13 of the ELC Act.

Reasoning

The court traced the ELC's jurisdiction to Article 162(2)(b) and the Environment and Land Court Act, Section 13, which empowers it to hear and determine disputes relating to land, including boundaries, and to grant reliefs such as injunctions. The dispute relates to alleged trespass on Plot No. 6401/I/MN, a land dispute within this jurisdiction. The Kadhi's Court having distributed the estate, boundary and trespass disputes fall to this court.

p. 2

Legal principles established

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  • Res judicata does not bar a suit where the issues now raised were not directly and substantially in issue, nor finally determined, in the former suit.
  • The Environment and Land Court has original jurisdiction over disputes relating to boundaries, occupation of and title to land under Section 13 of the ELC Act, notwithstanding that the parties are Muslims.

Court orders

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  1. 1.The preliminary objection dated 19th September, 2018 is dismissed
  2. 2.The court declines to strike out or dismiss the suit as requested
  3. 3.The plaintiff shall have costs of the preliminary objection

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 170(5)
  • Civil Procedure ActSection 7
  • Environment and Land Court Act No. 19 of 2011Section 13
  • Environment and Land Court Act No. 19 of 2011Section 28

Cases cited (3)

  • Ismail Fundi Reje v Fatuma Ibrahim Suliman
    Civil Appeal No. 5 of 2014
  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors
    (1969) EA 697
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; Environment and Land Court Act No. 19 of 2011, Section 13

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohamed Swaleh Fumo v Bakari Farah & another [2021] KEELC 4423 (KLR)", Case Analysis (2021). Not stated in the judgment (ruling on defendants' notice of preliminary objection dated 19th September, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4423/eng@2021-02-01

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