Ogla Jemeli Barngetuny v Shirji Naran Virji & 9 others; Chief Land Registrar & 3 others (Intrested Parties) [2022] KEELC 1703 (KLR)
The bottom line
#A Kenyan land court struck out a constitutional petition because the same dispute had already been decided, confirming you cannot re-litigate lost cases by filing fresh suits.
What this practically means
#Executive summary
#Key legal issues
#Supervisory jurisdiction over the ELC and Court of Appeal
The court has no jurisdiction to supervise, re-open or quash judgments of a court of concurrent jurisdiction affirmed on appeal
The petitioner sought certiorari and a declaration of mistrial against ELC and Court of Appeal judgments. Relying on Kenya Hotel Properties Ltd v AG, the court held it absurd for it to clothe itself with jurisdiction to overturn a Court of Appeal decision; Articles 165(6) and (7) supervisory powers do not extend over superior courts or concurrent courts whose judgments have been affirmed.
Res judicata
The petition was res judicata, the issues having been determined in ELC 157 of 2016 and affirmed in Kisumu Civil Appeal 262 of 2019
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties. The issues raised fell under Explanation 4 as matters which ought to have been grounds of defence in the ELC suit, and were fully addressed by the ELC and the Court of Appeal. Adding new parties could not evade the doctrine.
Abuse of court process
The petition was malicious, vindictive and an abuse of process, attacking all parties the petitioner perceived responsible for her predicament
Guided by Muchanga Investments and the South African and Nigerian authorities cited therein, the court found the petition wanting in bona fides, calculated to oppress the 1st Respondent, and an improper use of judicial time; such a petition should not have been filed.
Legal principles established
#- A High Court/ELC cannot purport to nullify or re-open a decision of the Court of Appeal or of a court of concurrent jurisdiction
- The doctrine of res judicata applies to constitutional litigation and may be raised by preliminary objection
- A litigant cannot escape res judicata by adding parties who were not in the previous proceedings
Court orders
#- 1.Preliminary objections on jurisdiction upheld - the court found the petition res judicata and lacking jurisdiction
- 2.The Petition together with the Notice of Motion struck out
- 3.Costs to the 1st, 2nd, 6th, 7th, 9th and 10th Respondents as well as the 1st and 2nd Interested Parties
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition alleging violations of Articles 28, 31, 35, 40, 45, 48 and 50); objections based on Articles 165(6) and (7) and Section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogla Jemeli Barngetuny v Shirji Naran Virji & 9 others; Chief Land Registrar & 3 others (Intrested Parties) [2022] KEELC 1703 (KLR)", Case Analysis (2022). Constitutional Petition No E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1703/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.