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ELCDismissedNot stated in the judgment excerpt (Nakuru ELC suit)· [2022] KEELC 2902 (KLR)

Ethics and Anti-Corruption Commission v Ndubi & 3 others; National Land Commisson (Interested Party) (Environment & Land Case 359 of 2015) [2022] KEELC 2902 (KLR)

Environment and Land Court
30 June 2022
1,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed the EACC's fraud-based land recovery suit to proceed, rejecting claims that earlier cases barred it.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection dated October 1, 2021, raised by the 1st defendant, Robert Hyder Ndubi, in a suit by the Ethics & Anti-Corruption Commission (EACC) seeking recovery of suit property LR No. Nakuru Municipality Block 4/232 on the ground that it was public land fraudulently and irregularly allocated by the 4th defendant to the 2nd and 3rd defendants, with the 1st defendant allegedly aware of the irregular alienation. The EACC sought rectification of the land register and cancellation of entries relating to the lease and title. The 1st defendant objected that the suit was res judicata in view of Nakuru CMCC No. 181 of 2012, in which he obtained a judgment declaring him owner, and sub judice by reason of the pending Nakuru ELC Appeal No. 15 of 2014 and Nakuru HC Misc App No. 408 of 2013, and sought striking out of the suit as incompetent and an abuse of process. The plaintiff filed grounds of opposition and written submissions, contending inter alia that the objection failed the Mukisa Biscuit threshold of a pure point of law. The court, per J M Mutungi, J, held that the issues in the earlier subordinate court suit were different and distinct from those in the instant suit; that the EACC was not a party to and could not be bound by the earlier decision, having joined only as an objector to execution; that the critical question of whether title was fraudulently procured was never tried; and that under section 26(1) of the Land Registration Act, 2012 a title may be challenged for fraud, misrepresentation or corrupt scheme. On sub judice, the court noted the appeal challenged only the ruling on objection proceedings and had been stayed pending this suit. The preliminary objection was dismissed with costs to the plaintiff against the 1st defendant.

Key legal issues

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01

Whether the suit is res judicata in light of Nakuru CMCC No. 181 of 2012

Holding

Not res judicata; the issues differ and the EACC was not a party to the earlier suit, having joined only as objector to execution

Reasoning

The lower court suit was between the 1st defendant and David Kipsang over ownership, possession and eviction. The plaintiff EACC only joined as an objector to execution, so its interest was never adjudicated. The present suit raises the distinct question whether title was fraudulently procured, an issue never tried in the subordinate court.

p. 4
02

Whether the suit is sub judice by reason of the pending Nakuru ELC Appeal No. 15 of 2014

Holding

Not sub judice; the appeal is against a ruling on objection proceedings, not ownership, and was stayed pending this suit

Reasoning

The appeal did not challenge the lower court judgment on ownership but only the ruling dismissing objection to attachment. It cannot determine ownership. The court had on October 23, 2019 stayed the appeal to await hearing and determination of the present suit, so the appeal is dependent on this suit's outcome.

p. 4
03

Whether the preliminary objection meets the Mukisa Biscuit threshold

Holding

The court found the objection without merit, the issues turning on facts rather than a pure point of law

Reasoning

The plaintiff argued, invoking Mukisa Biscuit, that the objection did not meet the threshold since res judicata and sub judice required ascertainment of facts from earlier pleadings. The court agreed in substance, finding the issues in the earlier suits different and the plaintiff not bound, and dismissed the objection with costs.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed pleaded facts and cannot succeed where facts must be ascertained or judicial discretion exercised
  • Under section 26(1) of the Land Registration Act, 2012 a certificate of title of a registered proprietor may be challenged on grounds of fraud, misrepresentation or corrupt scheme
  • Res judicata does not apply where the issues in the two suits are different and the party was not a party to, nor bound by, the earlier decision

Court orders

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  1. 1.The preliminary objection dated October 1, 2021 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff as against the 1st defendant

Authorities

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Legislation

  • Ethics & Anti-Corruption Commission Actsection 3
  • Ethics & Anti-Corruption Commission Actsection 7
  • Anti-Corruption and Economic Crimes Actsection 56
  • Land Registration Act, 2012section 26(1)

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Nakuru CMCC No. 181 of 2012 - Robert H. Ndubi -vs- David Kipsang & Ethics & Anti-Corruption Commission
  • Nakuru ELC Civil Appeal No. 15 of 2014 - Ethics & Anti-Corruption Commission -vs- Robert H. Ndubi and David Kipsang
  • Nakuru High Court (ELC) Misc App No. 408 of 2013 - Ethics & Anti-Corruption Commission -vs- Julius Matasyo, Flora Ayiti Matasio and Robert Hyder Ndubi
Jurisdiction invoked
Jurisdiction of the Environment and Land Court over disputes concerning title to land (assumed; not expressly cited)

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, "Ethics and Anti-Corruption Commission v Ndubi & 3 others; National Land Commisson (Interested Party) (Environment & Land Case 359 of 2015) [2022] KEELC 2902 (KLR)", Case Analysis (2022). Not stated in the judgment excerpt (Nakuru ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2902/eng@2022-06-30

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