Patrick Muthoka and 70 others v Raphael Musyoki Ndeti & another [2022] KEELC 1667 (KLR)
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
#Key legal issues
#Whether the suit is res judicata in light of ELC Misc Application No. 56 of 2018 (JR) and proceedings before the National Land Commission
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
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.
Whether the preliminary objection was properly raised as a pure point of law
The objection required ascertainment of facts and evidentiary proof, so it was improperly raised; the Defendants should have filed a Defence first
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.
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.The Notice of Preliminary Objection dated 17th May, 2021 is disallowed
- 2.Defendants directed to file their Defence within twenty one (21) days from the date of the ruling
- 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.