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ELCStruck OutPetition dated 21st August 2019 (Land Dispute Tribunal Claim No. 88 of 2007-related)· [2021] KEELC 4603 (KLR)

Lennox Mwadzoya Mwasirya v Joyce Lenga & 4 others [2021] KEELC 4603 (KLR)

Environment and Land Court
29 January 2021
2,677 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 struck out a constitutional petition because the landowner tried to relitigate a 2007 Tribunal award he never appealed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (J.O. Olola, J) dealt with the Petitioner's Notice of Motion dated 21 August 2019 seeking conservatory orders staying the implementation of a Bahari Land Disputes Tribunal decision in Land Dispute No. 88 of 2007, and the 1st Respondent's Preliminary Objection dated 2 December 2019. The Petitioner, administrator of the estate of Mwasirya Konde Tuva, alleged that the Tribunal awarded three acres of Plot Kilifi/Ngerenyi/731 to the 1st Respondent in proceedings conducted ex parte against defendants who lacked Letters of Administration, and sought certiorari, mandamus and declaratory reliefs. The 1st Respondent countered that the Tribunal defendants were served, that the award was adopted as a court order on 11 November 2008 and never appealed, and that the Petition was an abuse of process. The court noted that the Tribunal's own judgment recorded service on the defendants, that the persons sued were the Petitioner's blood brothers and beneficiaries of the estate, and that the Petitioner's attempt to be enjoined in the enforcement suit was dismissed for laches and functus officio. Holding that the Petition was a camouflage to relitigate concluded issues, the court upheld the Preliminary Objection, struck out both the Petition and the Motion, and awarded costs to the 1st Respondent.

Key legal issues

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01

Whether the Petition was an abuse of court process

Holding

Yes - the Petition sought to relitigate matters determined in the Tribunal case adopted as a court order, without appeal or setting aside.

Reasoning

The Tribunal award of three acres to the 1st Respondent was endorsed as a court order on 11 November 2008 and was never appealed or set aside. The Petitioner's attempt to be enjoined in the enforcement case was dismissed on grounds of laches and functus officio. Rather than pursuing available appellate or review remedies, he filed a constitutional petition raising the same issues, which the court held was a disguised attempt to reopen concluded proceedings.

p. 4
02

Whether non-service on the Tribunal Defendants invalidated the proceedings

Holding

No - the Tribunal itself recorded that the Defendants were served with hearing notices and chose not to appear.

Reasoning

The Tribunal's judgment of 30 October 2007 expressly found that the Defendants were served with hearing notices but ignored or decided not to appear, and the Tribunal properly proceeded ex parte under Section 13(9) of the Land Disputes Tribunal Act. The Petitioner's assertion of non-service was unpersuasive, particularly as the persons sued were his blood relatives and beneficiaries of the estate he administered.

p. 4
03

Whether being sued without Letters of Administration prejudiced the estate

Holding

No - the persons sued were known beneficiaries of the estate.

Reasoning

The Petitioner contended the Tribunal Defendants were 'persona non grata' for lacking a grant. The court found this non-prejudicial because the Certificate of Confirmation of Grant listed the same individuals among the estate's beneficiaries, and the Petitioner's own knowledge of the proceedings was evident from his averments. The irregularity, if any, did not advance his case.

p. 4

Legal principles established

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  • A party who failed to appeal or set aside a Tribunal award adopted as a court order cannot institute a fresh constitutional petition alleging violation of rights to relitigate the same issues.
  • Inordinate delay without explanation constitutes laches and renders a petition an abuse of court process.

Court orders

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  1. 1.The Preliminary Objection by the 1st Respondent is upheld
  2. 2.Both the Petition and the Notice of Motion dated 21st August 2019 are struck out
  3. 3.Costs of the application and Petition awarded to the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 27, 40, 47, 50, 68, 159, 160, 161, 162
  • Civil Procedure RulesOrder 53
  • Land Adjudication ActSection 29
  • Land Disputes Tribunal Act No. 18 of 1990Section 13(9)
  • Law Reform ActSections 8 and 9
  • Land Actnull
  • Land Registration Actnull
  • Environment and Land Court Actnull
Jurisdiction invoked
Articles 22, 23, 40, 47, 50, 68, 159 and 162 of the Constitution of Kenya, 2010; Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Lennox Mwadzoya Mwasirya v Joyce Lenga & 4 others [2021] KEELC 4603 (KLR)", Case Analysis (2021). Petition dated 21st August 2019 (Land Dispute Tribunal Claim No. 88 of 2007-related). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4603/eng@2021-01-29

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