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ELCStruck OutJudicial Review Application (Notice of Motion dated 16th December 2019); related Appeal No. 7 of 2014· [2022] KEELC 1808 (KLR)

Republic v Land Disputes Tribunal Magarini & another Exparte Jeremiah Kazungu Ngonyo & 5 others; Katana Gona Kalama & another (Interested Parties) [2022] KEELC 1808 (KLR)

Environment and Land Court
25 January 2022
1,204 words in judgment
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The bottom line

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A Kenyan court threw out a land dispute application because the same issue had already been decided — you must revive a dismissed appeal, not file a new case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determines a Notice of Preliminary Objection dated 30th January 2020 raised by the 2nd Interested Party against the ex parte applicants' Notice of Motion (dated 16th December 2019) seeking certiorari to quash the judgment and decree of the Principal Magistrates Court at Malindi adopting the Magarini Land Disputes Tribunal's decision of 7th February 2006, and prohibition against its execution. The applicants had earlier appealed to the Provincial Land Disputes Tribunal; on repeal of the enabling Act the appeal transferred to the Environment and Land Court as Appeal No. 7 of 2014, which was dismissed for want of prosecution on 21st June 2018. The Interested Party argued the application was res judicata and an abuse of process, that stay thresholds under Order 42 Rule 6 were unmet, and that the original parties had died without letters of administration being taken out. Applying Mukisa Biscuit and Mumo Matemu, the court held the res judicata objection was a pure point of law properly raised as a preliminary objection. It found the jurisdictional challenge had already been raised in the dismissed appeal; the correct course was an application for reinstatement, not a fresh application. The preliminary objection was upheld and the application dismissed with costs to the Interested Parties. Judgment delivered online at Malindi on 25th January 2022.

Key legal issues

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01

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

Holding

Yes; the res judicata objection is a pure point of law going to jurisdiction and capable of terminating the matter

Reasoning

The court applied the Mukhisa Biscuit test: a preliminary objection raises a pure point of law on assumed facts. The objection that the application is res judicata required no ascertainment of facts or exercise of discretion, since the appeal's dismissal for want of prosecution was evident from the record. If upheld it would terminate the matter, hence it had to be given priority.

p. 2
02

Whether the application is res judicata

Holding

Yes; the issue of the Tribunal's excess of jurisdiction was raised in the appeal dismissed for want of prosecution, and the applicants' remedy was reinstatement, not a fresh judicial review application

Reasoning

Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties before a competent court. The Tribunal decision was adopted as judgment in 2006, and the appeal challenging the Tribunal's jurisdiction was before this court as Appeal No. 7 of 2014 and dismissed on 21st June 2018. The applicants never explained the failure to prosecute it, and could not file a fresh application instead of seeking reinstatement.

p. 2

Legal principles established

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  • A preliminary objection must be given priority as it may dispose of a suit at a preliminary stage
  • Where an appeal has been dismissed for want of prosecution, the remedy is an application for reinstatement rather than a fresh suit; a fresh application on the same issue is res judicata

Court orders

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  1. 1.The preliminary objection that the application is res judicata is upheld
  2. 2.The application dated 16th December 2019 is dismissed with costs to the Interested Parties

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Disputes Tribunal Act (repealed)Section 3
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 21 [1]

Cases cited (5)

  • Mukhisa Biscuit Manufacturers Ltd. v West End Distributors Ltd.
    [1969] E.A. 696
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2014] eKLR
  • Karunguru Estate Limited v Beatrice Wamere Karanja
    HCCC No. 232 of 2012
  • Lalji Bhimji Sanghani Builders & Contractors v Nairobi Golf Hotels Kenya Ltd
    HCCC No. 1990 of 1995
  • Job Okuna Oyugi v L'Resh Holdings Ltd and 3 others
    Nairobi Civil Application No. 404 of 1996
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court (orders of certiorari and prohibition); not expressly stated in the judgment

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, "Republic v Land Disputes Tribunal Magarini & another Exparte Jeremiah Kazungu Ngonyo & 5 others; Katana Gona Kalama & another (Interested Parties) [2022] KEELC 1808 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated 16th December 2019); related Appeal No. 7 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1808/eng@2022-01-25

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