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ELCAllowedNot stated in the judgment provided· [2022] KEELC 2666 (KLR)

Kibira v Board of Management St. Teresa Secondary School & another (Environment & Land Case 25 of 2012) [2022] KEELC 2666 (KLR)

Environment and Land Court
6 July 2022
1,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who uprooted court-sanctioned boundary beacons was forced to restore them, pay costs, and accept that decided disputes cannot be reopened.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Fred Nyagaka J) determined the 1st Defendant's application dated January 26, 2022, invoking Section 3A of the Civil Procedure Act. The 1st Defendant, whose counterclaim had been allowed in the main judgment (delivered in early 2021 and undisturbed after the Plaintiff's bid to appeal out of time failed), sought orders directing the County Surveyor, Trans Nzoia County to reinstate beacons demarcating Plot No. 61 Chepkorok Farm otherwise L.R. No. 5XXX/3, and directing the County Police Commander to provide security during the exercise. The 1st Defendant deposed that the Plaintiff had uprooted the beacons, which had been erected in implementation of the decree in Kitale CMCC Land Case No. 12 of 1999, and that it needed proper demarcation to undertake infrastructure development. The Plaintiff, acting through a grant ad litem issued in Kitale CMC Ad Litem Cause No. 25 of 2022, opposed the application on the ground that it was not founded on the counterclaim decision, and that the 1999 decree never authorised any excision to the school. The 1st Defendant filed a supplementary affidavit showing the 1999 decree had been implemented in 2011 and contending that the Plaintiff's objections were res judicata. The Court held that the parties were seeking to relitigate decided issues, that litigation must come to an end, and that it would not sit on appeal against its own judgment. Noting that the Plaintiff had not denied uprooting the beacons, the Court found the application merited and allowed it in full, directing reinstatement of the beacons, provision of security, and that the Plaintiff bear the costs of the application.

Key legal issues

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01

Whether the 1st Defendant's application for reinstatement of beacons and security was merited

Holding

The application was merited; the beacons erected in implementation of the court order in Kitale CM Land Case No. 12 of 1999 were the proper boundary beacons, and the Plaintiff did not deny uprooting them.

Reasoning

The Court had previously found, through expert evidence of the County Surveyor, that the beacons erected in implementation of the decree in Kitale CMCC Land Case No. 12 of 1999 were the proper boundary beacons. That judgment remained undisturbed after the Plaintiff's bid to appeal out of time failed. The Plaintiff's opposition raised collateral issues, including an alleged unimplemented 1999 decree, which the Court treated as red herrings and res judicata. The Plaintiff did not deny uprooting the beacons, and the Court read mischief in his opposition.

p. 3
02

Whether the Plaintiff could relitigate issues already determined in the judgment of February 11, 2021

Holding

No; the issues raised in the Replying Affidavit were res judicata and the Court declined to sit on appeal against its own decision.

Reasoning

The Court noted that the Plaintiff's depositions sought to reopen matters decided in the judgment of February 11, 2021, which remained undisturbed following the dismissal of the Plaintiff's application to appeal out of time. The Court confined itself to the issues raised in the application, holding that litigation must come to an end and that it would not place itself in the position of sitting on appeal against its own decision. The letters of administration ad litem were viewed as an attempt to circumvent final orders.

p. 2

Legal principles established

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  • Litigation must come to an end; parties may not relitigate issues already decided by a court of competent jurisdiction.
  • Beacons erected pursuant to implementation of a court order remain the proper beacons demarcating the boundary, and a party who uproots them may be ordered to have them reinstated with security.

Court orders

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  1. 1.The County Surveyor, Trans Nzoia County be and is hereby directed to reinstate the beacons demarcating Plot No. 61 Chepkorok Farm otherwise LR. No. 5XXX/3 back to their original positions
  2. 2.The County Police Commander, Trans Nzoia County and/or any other Officer subordinate to him/her is and is hereby directed to furnish security during the process of reinstating the beacons by the County Surveyor
  3. 3.Costs of the Application shall be borne by the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 3A
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power of the court)

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, "Kibira v Board of Management St. Teresa Secondary School & another (Environment & Land Case 25 of 2012) [2022] KEELC 2666 (KLR)", Case Analysis (2022). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2666/eng@2022-07-06

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