Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract· [2022] KEELC 1667 (KLR)

Patrick Muthoka and 70 others v Raphael Musyoki Ndeti & another [2022] KEELC 1667 (KLR)

Environment and Land Court
8 February 2022
1,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused to dismiss a land dispute as 'already decided' because prior NLC and judicial review proceedings involved different parties and processes.

What this practically means

#

Executive summary

#
The Environment and Land Court at Machakos (Ochieng J) determined a Notice of Preliminary Objection dated 17th May 2021 by which the Defendants sought dismissal of the Plaintiffs' suit concerning LR No. 337/1208 and land in Kanaani Phase II (Athi River). The Defendants argued the suit was res judicata, offending Section 7 of the Civil Procedure Act, because the issues had been canvassed before the National Land Commission and in ELC Misc Application No. 56 of 2018 (JR) at Machakos, and that the Plaint disclosed no cause of action. The Plaintiffs countered that a preliminary objection must be a pure point of law, that the judicial review was commenced by Dakawou Transporters Ltd against the National Land Commission, Chief Land Registrar and Attorney General - parties distinct from the present litigants - and that the NLC is an administrative body whose decisions cannot found res judicata. The court framed one issue: whether the suit should be dismissed as res judicata. Applying Mukisa Biscuits and the res judicata elements, the court held that neither Plaintiff nor Defendants were parties to the judicial review, and that the NLC hearing was before an administrative body, not a court of competent jurisdiction. The objection also required ascertainment of facts. The Notice of Preliminary Objection was found unmerited and disallowed; the Defendants were directed to file a Defence within 21 days, with costs in the cause.

Key legal issues

#
01

Whether the suit is res judicata in light of ELC Misc Application No. 56 of 2018 (JR) and proceedings before the National Land Commission

Holding

The suit is not res judicata: neither the Plaintiffs nor the Defendants were parties to the judicial review, and the NLC proceedings were before an administrative body, not a court of competent jurisdiction

Reasoning

Section 7 of the Civil Procedure Act requires a former suit between the same parties or their privies, litigating under the same title, heard and finally decided by a competent court. The judicial review was brought by Dakawou Transporters Ltd against the NLC, Chief Land Registrar and Attorney General; the present parties were absent. The NLC exercises administrative, not judicial, functions, so its hearing cannot found res judicata.

p. 2
02

Whether the preliminary objection was properly raised as a pure point of law

Holding

The objection required ascertainment of facts and evidentiary proof, so it was improperly raised; the Defendants should have filed a Defence first

Reasoning

Following Mukisa Biscuits, a preliminary objection must raise a pure point of law on assumed pleaded facts and cannot depend on facts to be ascertained. The court found the Defendants' averments required evidentiary proof, and noted they had not filed a Defence to controvert the Plaint. The objection therefore failed on this basis as well.

p. 2

Legal principles established

#
  • A decision of the National Land Commission, an administrative body, cannot found res judicata because it is not a court of competent jurisdiction
  • Elements of res judicata require same parties litigating under the same title before a competent court that heard and decided the matter

Court orders

#
  1. 1.The Notice of Preliminary Objection dated 17th May, 2021 is disallowed
  2. 2.Defendants directed to file their Defence within twenty one (21) days from the date of the ruling
  3. 3.Costs in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction over occupation and title to land; objection founded on Section 7 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patrick Muthoka and 70 others v Raphael Musyoki Ndeti & another [2022] KEELC 1667 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1667/eng@2022-02-08

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