Wanyilu & another v Deputy County Commissioner Masinga District & 3 others; Matheka (Interested Party) (Environment & Land Petition 15 of 2019) [2022] KEELC 2194 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that land officials who deny parties a fair hearing cannot hide behind 'final decision' clauses.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata following the Minister's determination in Land Appeal Case Nos. 258 of 2006 and 07 of 2007
Res judicata does not apply because the Minister's decision is not a decision of a court of competent jurisdiction and the constitutional issues raised were not determined in the former proceedings
The court reasoned that res judicata under Section 7 of the Civil Procedure Act requires a decision from a court with competent jurisdiction, same parties, litigating under the same title, and same issues re-raised. The Interested Party provided no court decision determining the issues; the Petition raised constitutional issues of fair administrative action and the right to be heard, which were not heard and determined by a court of competent jurisdiction. The objection therefore failed on this ground.
Whether Section 29(1) of the Land Adjudication Act divests the court of jurisdiction where the Minister's appeal decision is alleged to have breached natural justice
The ouster does not apply where the tribunal breached the rules of natural justice; the court retained jurisdiction over the Petition founded on Articles 47 and 50
Relying on Nyakinyua and Kang'ei Farmers Company Ltd, the court adopted the principle that ouster clauses are construed strictly and do not exclude judicial power where the tribunal acts without jurisdiction or breaches natural justice, rendering the decision a nullity. The uncontroverted Petition averments that the Petitioners were denied audience, not informed of hearing dates and the locus in quo visit, and not timely informed of the judgment established breaches of natural justice and fair administrative action under Articles 47 and 50.
Whether a preliminary objection can be sustained where the averments require evidentiary proof
The Interested Party's averments required evidentiary proof and it should have filed a reply to the Petition before anchoring the preliminary objection
The court noted that the Interested Party raised important issues but, consistent with the Mukhisa Biscuits principle that a preliminary objection must be a pure point of law, the Interested Party's contentions required factual ascertainment. It should have filed a reply to the Petition to deny the Petitioners' averments first and anchor the preliminary objection on the pleadings, since its averments also required evidentiary proof.
Legal principles established
#- Statutory ouster clauses such as Section 29(1) of the Land Adjudication Act do not oust the court's jurisdiction where the tribunal acted without jurisdiction or breached the rules of natural justice
- For res judicata to apply, the decisions relied on must emanate from a court of competent jurisdiction, and the same parties litigating under the same title must have raised the same issues
Court orders
#- 1.The Notice of Preliminary Objection dated the 5th August, 2020 is unmerited and is disallowed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Constitution of Kenya, Articles 47 and 50 (fair administrative action and right to be heard); Land Adjudication Act Cap 294 Section 29(1) in issue
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanyilu & another v Deputy County Commissioner Masinga District & 3 others; Matheka (Interested Party) (Environment & Land Petition 15 of 2019) [2022] KEELC 2194 (KLR)", Case Analysis (2022). Petition dated 14th August 2019 (Land Appeal Case Nos. 258 of 2006 and 07 of 2007 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2194/eng@2022-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.