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ELCDismissedPetition dated November 26, 2020 (Narok)· [2022] KEELC 3711 (KLR)

Koech & 3 others v District Surveyor Narok & 3 others (Constitutional Petition E002 of 2020) [2022] KEELC 3711 (KLR)

Environment and Land Court
9 June 2022
CMC. G. Mbogo
3,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land rights petition because the same dispute had already been decided, and family members were bound by those earlier outcomes.

What this practically means

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Executive summary

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The petitioners, registered proprietors of parcels Cis-Mara/Ololulunga/11646-11709 created upon subdivision of the dissolved Olposare Group Ranch parcel Cis-Mara/Ololulunga/9, petitioned for declarations that the defunct Ololulunga Land Disputes Tribunal and the 1st respondent violated the Land Disputes Tribunal Act, the Fair Administrative Action Act and constitutional rights to property, fair hearing and fair administrative action; an order of certiorari to quash the tribunal's decision adopted as Narok Senior Resident Magistrate's Court Misc Land No 13 of 2006; and prohibition against implementation of the decree, following a notice of re-adjudication issued on November 23, 2020. Respondents and interested parties opposed, arguing chiefly that the petition was res judicata given prior litigation over the same property in Nakuru JR No 10 of 2011, Constitutional Petition No 48 of 2012 and Court of Appeal Civil Application No 267 of 2015, and that the tribunal lacked jurisdiction to cancel titles. The court framed three issues and, applying Section 7 of the Civil Procedure Act and the Supreme Court's conjunctive test in IEBC v Maina Kiai, found the petition res judicata: the same subject matter and reliefs were finally determined previously, and the petitioners, appearing as sons and acceptees on the group ranch list, claim under the former parties. Declining to determine the remaining issues as futile, the court dismissed the petition with costs to the 1st, 3rd, 4th and 5th respondents.

Key legal issues

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01

Whether the petition is res judicata

Holding

Yes - the subject matter, Cis-Mara/Ololulunga/9, and similar reliefs were litigated and finally determined in Narok JR No 10 of 2011, Constitutional Petition No 48 of 2012 and Civil Application No 267 of 2015, and the petitioners claim under the parties to those suits as sons and acceptees of the group ranch members.

Reasoning

The court applied the conjunctive test in IEBC v Maina Kiai under Section 7 of the Civil Procedure Act. The petitioners appeared on the group ranch list of sons and acceptees as numbers 1, 20, 6 and 16, meaning their interests were litigated under Explanation 6 of Section 7. Their claim of denial of fair hearing for non-participation was rejected as lame since prior suits concerned the same property and relief.

p. 7
02

Whether the tribunal had jurisdiction to cancel title deeds

Holding

Not determined - the court declined to decide this issue after finding the petition res judicata.

Reasoning

Having found the petition res judicata, the court held that determining the remaining issues would be a futile exercise, and expressly declined to proceed further.

p. 8

Legal principles established

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  • All the ingredients of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively
  • Persons claiming under parties to a former suit, including sons and acceptees allotted land, are bound by prior decisions on the same subject matter

Court orders

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  1. 1.The petition dated November 26, 2020 is dismissed
  2. 2.Costs to the 1st, 3rd, 4th and 5th respondents
Jurisdiction invoked
Original constitutional petition jurisdiction under the Constitution of Kenya, 2010 (petition alleging violation of Articles 40, 47 and 50)

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, "Koech & 3 others v District Surveyor Narok & 3 others (Constitutional Petition E002 of 2020) [2022] KEELC 3711 (KLR)", Case Analysis (2022). Petition dated November 26, 2020 (Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3711/eng@2022-06-09

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