Muthoka & another (Suing as the administrators of the Estate of Mwangangi Muthoka) v Musyimi (Suing as the administrator of the Estate of Musyimi Kilonzo) & 3 others (Environment and Land Constitutional Petition 15 of 2020) [2022] KEELC 3862 (KLR)

Section 7 of the Civil Procedure Act requires identity of parties litigating under the same title, a competent court, and a matter directly and substantially in issue heard and finally decided. The 1st respondent produced no decision determining the dispute over parcel 1525 Kangonde/Masinga. The JR 112 of 2017 proceedings involved different parcels and different parties, and the estate of Mwangangi Muthoka was not represented. The essential ingredients of res judicata were therefore not demonstrated.

The petitioner alleges the appeal before the Minister was heard and determined without audience or representation of the estate of the deceased disputant, and the respondents did not deny this. Citing Nyakinyua and Kang'ei Farmers, ouster words do not protect a decision that is a nullity for breaching natural justice. Articles 22 and 23 confer enforcement jurisdiction, and Article 47 together with the Fair Administrative Action Act prescribes no mandatory judicial review route.

The 2nd to 4th respondents contended the suit challenged an administrative decision which had to be challenged by judicial review. The court rejected this, holding that the constitutional framework on fair administrative action contains no such procedural restriction, and that the petition raising fair administrative action and right-to-be-heard issues was properly before the court.

The court found the fulcrum of the dispute was fair administrative action, with the allegation that the appeal was determined in the absence of the deceased's estate, which the respondents did not deny. Having declined to strike out the petition on the res judicata and jurisdiction grounds, the court disallowed both notices and directed the petition to proceed to full hearing on merit.