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ELCDismissedPetition dated 14th August 2019 (Land Appeal Case Nos. 258 of 2006 and 07 of 2007 referenced)· [2022] KEELC 2194 (KLR)

Wanyilu & another v Deputy County Commissioner Masinga District & 3 others; Matheka (Interested Party) (Environment & Land Petition 15 of 2019) [2022] KEELC 2194 (KLR)

Environment and Land Court
10 May 2022
1,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) determined an Interested Party's Notice of Preliminary Objection dated 5th August 2020 seeking to strike out the Petitioners' Petition and Notice of Motion both dated 14th August 2019. The objection raised four grounds: that the matter was res judicata having been determined by the Minister in Land Appeal Case Nos. 258 of 2006 and 07 of 2007; that the Petition violated Section 29(1) of the Land Adjudication Act, under which the Minister's decision is final, ousting the court's jurisdiction; that the suit was incompetent and abusive under Order 2 Rule 15 of the Civil Procedure Rules; and that the suit was barred by a prior decision in Kisii Petition No. 6 of 2016. The Petitioners responded that they challenged the procedure leading to the Minister's decision, not substantive rights. The court held that res judicata requires determination by a court of competent jurisdiction between the same parties, which the Minister's decision was not, and that the Petition raised constitutional issues of fair administrative action and the right to be heard. Applying Nyakinyua and Kang'ei Farmers, the court held that the ouster in Section 29(1) does not apply where natural justice was breached. Noting that the Petition averments - denial of audience, lack of notice of hearing dates, the locus in quo visit and the judgment - remained uncontroverted, the court found breaches of natural justice and fair administrative action under Articles 47 and 50. The preliminary objection was found unmerited and disallowed, with costs in the cause.

Key legal issues

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01

Whether the Petition is res judicata following the Minister's determination in Land Appeal Case Nos. 258 of 2006 and 07 of 2007

Holding

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

Reasoning

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.

p. 4
02

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

Holding

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

Reasoning

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.

p. 5
03

Whether a preliminary objection can be sustained where the averments require evidentiary proof

Holding

The Interested Party's averments required evidentiary proof and it should have filed a reply to the Petition before anchoring the preliminary objection

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated the 5th August, 2020 is unmerited and is disallowed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)
  • Civil Procedure ActSection 7 (including Explanations 1-6)
  • Civil Procedure RulesOrder 2 Rule 15(1)(a), (b), (c) and (d)
  • Constitution of KenyaArticles 47 and 50

Cases cited (9)

  • Mukhisa Biscuits Manufacturing Co. Ltd Vs West End Distributors
    (1969) EA 696
  • Speaker of the National Assembly Vs Karume
    (1992) eKLR
  • Mwangi Njangu Vs Meshack Mbogo Wambungu & Another
    HCC No. 234 of 1991 (unreported)
  • Lepore Ole Maito Vs Letwat Korton & 2 Others
    (2016) eKLR
  • Republic v Musanka Ole Runkes Tarakwa & 5 others Ex-parte Joseph Lesalol Lekitio & others
    [2015] eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
  • Nyakinyua and Kang'ei Farmers Company Ltd vs. Kariuki Gathecha Resources Ltd (No 2)
    [1984] KLR 110
  • Saeni v Daniel Aramat Lolungiro and 2 others
    Kisii Petition No. 6 of 2016
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

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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, "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.