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ELCOtherEnvironment & Land Case 83 of 2015 (Formerly Nyeri HCCC No. 206 of 1995)· [2022] KEELC 12721 (KLR)

Ngurukie v Attorney General & 5 others

Environment and Land Court of Kenya
28 September 2022
2,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A 27-year-old Kenyan land dispute must now proceed on its original 1995 pleadings after the court rejected an attempt to add new claims via a petition.

What this practically means

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Executive summary

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This ruling by J. O. Olola of the Environment and Land Court at Nyeri addresses the mode of disposal of a land dispute pending for some 27 years. The original plaintiff charged Land Parcel Othaya/Kihingiru/424 to a bank in 1958; he alleged the property was fraudulently discharged and registered in the name of the 5th respondent, later passing to the 6th respondent's husband. After an originating summons in 1987, the claim was refiled by plaint in 1995 (Nyeri HCCC 206 of 1995). In 1997 Osiemo J referred the dispute to the Nyeri District Land Disputes Tribunal, which awarded the land to the plaintiff; the Provincial Appeals Tribunal overturned that award in 2001 and ordered the plaintiff's eviction, and those proceedings were adopted as a court order. Attempts to set aside the tribunal award failed (Sergon J, 2010; Ombwayo J, 2013). In 2014 the substituted plaintiff filed a 'petition' within the same suit seeking declarations of fraud, nullity of the tribunal proceedings and eviction, restoration of the land, mesne profits and damages for violation of rights. Ombwayo J dismissed a preliminary objection in February 2015, holding the tribunal had no jurisdiction over the matter. Olola J held that the parties must revert to the 1995 pleadings; the petition was an impermissible attempt to sneak in a new claim 19 years later, and new parties required amendment of the plaint while a constitutional petition had to be filed separately with leave. Invoking inherent jurisdiction, the court set aside the directions of November 2, 2017, granted leave to amend the plaint, and issued a timetable for amended defences, documents, witness statements and a mention on December 1, 2022. No costs order was made.

Key legal issues

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01

Propriety of the petition filed within the 1995 suit

Holding

The petition was an improper attempt to introduce a new claim and new parties into a long-pending suit; it could not stand as filed

Reasoning

The original suit was instituted by plaint in 1995. The court held that after the tribunal's decision was found to be a nullity for want of jurisdiction, the parties revert to the pleadings on record. A plaintiff wishing to add defendants must amend the plaint; a constitutional petition must be filed separately with leave. The petition was therefore not a valid mode of proceeding within the suit.

02

Consequence of the tribunal's lack of jurisdiction

Holding

The Land Disputes Tribunal had no jurisdiction to determine the fraud claim, so the parties must be heard on the 1995 pleadings

Reasoning

The court endorsed the earlier ruling of February 27, 2015 which found the preliminary objection had no basis because the matter had only been determined by a tribunal lacking jurisdiction. Once jurisdiction is absent, the tribunal's determination is a nullity and the parties revert to the original suit for hearing on the pleadings and evidence.

p. 4
03

Inherent jurisdiction to give fresh directions

Holding

The court invoked its inherent jurisdiction to set aside prior directions and issue new case-management directions for a just disposal

Reasoning

Given the 27-year history, the death of the 1st defendant without substitution, and the procedural muddle, the court set aside the directions of November 2, 2017 and granted leave to amend the plaint, with timetables for amended defences, documents, witness statements and a mention date.

p. 4

Legal principles established

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  • Once a tribunal is found to lack jurisdiction over a dispute, the parties must be heard on the pleadings already filed in the suit
  • A party cannot introduce a new claim in an existing suit by filing a petition; new parties require amendment of the plaint, and a constitutional petition must be filed separately with leave

Court orders

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  1. 1.Set aside the directions adopted on November 2, 2017
  2. 2.Petitioner granted leave to amend and serve his plaint dated December 5, 1995 if need be within 14 days
  3. 3.Defendants to file and serve an amended defence if need be within 7 days after service
  4. 4.Petitioner to file and serve documents and/or witness statements within 30 days
  5. 5.Defendants to file and serve their documents and/or witness statements within 14 days of such service
  6. 6.Matter to be mentioned on December 1, 2022 for confirmation of compliance and to fix a hearing date

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 8(9)
Jurisdiction invoked
Inherent jurisdiction of the court invoked to give fresh directions; matter originally a High Court civil suit transferred to the Environment and Land 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, "Ngurukie v Attorney General & 5 others", Case Analysis (2022). Environment & Land Case 83 of 2015 (Formerly Nyeri HCCC No. 206 of 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12721/eng@2022-09-28

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