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ELCStruck OutPetition dated 15th June 2021 (Kakamega)· [2022] KEELC 962 (KLR)

Humphrey Olwisi Muranda & another v Sherry Wamukoya Wabuko & 2 others [2022] KEELC 962 (KLR)

Environment and Land Court
8 March 2022
DOD. O. Ohungo
3,211 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

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A Kakamega court threw out a land rights petition because the same issues had already been decided in earlier cases, ending a 20-year dispute.

What this practically means

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Executive summary

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The petitioners, registered owner and son of the former owner of parcel Marama/Shianda/126, petitioned the court seeking declarations that the Butere Land Disputes Tribunal lacked jurisdiction to nullify their title in Claim No. 8 of 2001 and to award the land to Yakobet Neshesa Wabuko (deceased), and that their rights under Articles 40 and 50 of the Constitution were infringed. They also sought conservatory orders restraining dealings with the property. The first respondent, administrator of the deceased's estate, opposed, deposing that the land had been subject to protracted litigation since 2002 across multiple fora, culminating in Kakamega ELC No. 50 of 2016, whose decree she executed and by which she became the registered proprietor. The second and third respondents argued the petition was res judicata and that the petitioners had not pleaded violations with precision. The court framed two issues: whether the petition was res judicata and whether the reliefs should issue. Applying Section 7 of the Civil Procedure Act and Supreme Court authority, the court held that the identical issues of the tribunal's jurisdiction and fair hearing had been or ought to have been raised in the prior tribunal proceedings, the Provincial Appeals Committee appeal, Kakamega High Court Civil Appeal No. 55 of 2002 and the Court of Appeal, all between the same parties litigating under the same title. It further held that dismissal of a prior suit without determination on the merits nonetheless amounts to a judgment for res judicata purposes. The petition was struck out with costs to the respondents.

Key legal issues

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01

Whether the petition is barred by res judicata

Holding

Yes. The issues of the tribunal's want of jurisdiction to annul a title and denial of fair hearing were settled in the prior proceedings between the same parties, and dismissal of the prior appeal without determination on the merits does not defeat res judicata.

Reasoning

The same subject matter (Marama/Shianda/126) was litigated through the Butere Land Disputes Tribunal, the Provincial Appeals Committee, Kakamega HCCC No. 55 of 2002 and the Court of Appeal, involving the same parties or those claiming under the same title. Jurisdiction and fair hearing are questions of law which the petitioners could and should have raised in the appeal on points of law certified by Waweru J. Res judicata extends to issues which might and ought to have been raised, and dismissal of a suit is still a judgment for res judicata purposes.

p. 4

Legal principles established

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  • Res judicata applies to constitutional petitions and covers all issues which might and ought to have been raised in former suits
  • A dismissal of a suit, including for want of prosecution or non-attendance, amounts to a judgment for the purposes of res judicata

Court orders

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  1. 1.The petition is struck out with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Disputes Tribunals Act, 1990 (repealed)Section 3
  • Land Disputes Tribunals Act, 1990 (repealed)Section 8(1), 8(8), 8(9)
  • Constitution of Kenya, 2010Articles 22, 24(1)(d), 40, 50, 159

Cases cited (11)

  • John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others
    [2021] eKLR
  • Edward Akong'o Oyugi & 2 others v Attorney General
    [2019] eKLR
  • Council of County Governors vs Attorney General & Another
    [2017] eKLR
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Lennox Mwadzoya Mwasirya v Joyce Lenga & 4 others
    [2021] eKLR
  • Paul Muraya Kaguri v Simon Mbaria Muchunu
    [2015] eKLR
  • John Njue Nyaga –vs- Attorney General & 6 others
    [2016] eKLR
  • Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another
    [2016] eKLR
  • Njue Ngai v Ephantus Njiru Ngai & another
    [2016] eKLR
  • Co-operative Bank of Kenya Limited v Cosmas Mrombo Moka & Legacy Auctioneering Services
    [2019] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 22, 40, 50 and 159 invoked by petitioners); Environment and Land Court jurisdiction over constitutional petitions concerning land

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, "Humphrey Olwisi Muranda & another v Sherry Wamukoya Wabuko & 2 others [2022] KEELC 962 (KLR)", Case Analysis (2022). Petition dated 15th June 2021 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/962/eng@2022-03-08

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