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ELCStruck OutEnvironment and Land Constitutional Petition 50 of 2019· [2022] KEELC 13454 (KLR)

Mulinge & another v Charo & 3 others

Environment and Land Court of Kenya
5 October 2022
LNL. L. Naikuni
6,899 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute petition because the same fight had already been decided, warning against disguising land suits as constitutional claims.

What this practically means

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Executive summary

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The 1st and 2nd petitioners, husband and wife, filed a constitutional petition claiming they purchased 0.418 ha of plot No MN/VI/121 at Aldina, Jomvu from the 1st respondent for Kshs 600,000 in August 2012, and that the 3rd and 4th respondents thereafter trespassed, removed beacons and fenced part of the land. They sought declarations of ownership, that the sale by the 1st and 2nd respondents was invalid, that the respondents were trespassers, and a permanent injunction. The respondents replied that the same dispute had been fully litigated: the petitioners' suit in ELC Case No 232 of 2013 was heard by Omollo J and dismissed on August 2, 2018, and their appeal, Civil Appeal No 136 of 2018, was dismissed by the Court of Appeal on March 7, 2019. The respondents contended the petition offended res judicata under section 7 of the Civil Procedure Act. The court framed four issues and held that although the petition met the Anarita Karimi Njeru threshold of precision, it was res judicata: the same parties, litigating under the same title, had had the issues of ownership, allocation and trespass directly and substantially determined by competent courts. Adding new parties could not revive the claim; the Constitution was being used as camouflage to reopen concluded litigation. The court struck out the petition and awarded costs to the four respondents.

Key legal issues

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01

Whether the petition met the constitutional petition threshold

Holding

The court found the petitioners had complied with the threshold of reasonable precision on the face of the pleadings

Reasoning

Applying Anarita Karimi Njeru as adopted in Mumo Matemu, the court held constitutional violations must be pleaded with reasonable precision. On the face of the filed pleadings, the petitioners had identified the constitutional provisions allegedly violated and the facts of the alleged infringements, so the threshold was met.

02

Whether the petition offended the doctrine of res judicata

Holding

Yes - the petition was res judicata, the same issues having been determined in ELC Case No 232 of 2013 and on appeal in Civil Appeal No 136 of 2018

Reasoning

The court perused the earlier judgment and appeal, finding the same parties litigating under the same title over the same land, with the issues of ownership, allocation and trespass directly and substantially determined by competent courts. Adding new parties did not alter this; the Constitution was being used as camouflage to reopen concluded litigation.

p. 12
03

Costs of the petition

Holding

The petitioners, having failed, were to bear the respondents' costs

Reasoning

Costs follow the event. Since the petition failed on the ground of res judicata, the 1st and 2nd petitioners were to bear the costs of the petition as against the four respondents.

p. 12

Legal principles established

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  • The doctrine of res judicata applies to constitutional litigation just as in other civil litigation, and may be raised through pleadings or preliminary objection without a formal application
  • A constitutional petition must identify with reasonable precision the constitutional provisions allegedly violated and the particulars of infringement
  • Parties cannot evade res judicata by merely adding other parties or causes of action in a subsequent suit

Court orders

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  1. 1.Judgment be and is hereby entered in favour of the 1st, 2nd, 3rd and 4th respondents
  2. 2.The Constitution petition filed and dated November 13, 2019 by the 1st & 2nd petitioners be and is hereby struck out for lack of merit
  3. 3.Costs to be borne by the 1st and 2nd petitioners and awarded to the 1st, 2nd, 3rd and 4th respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 21, 22(1)(2)&(3), 23(1)&(3), 25(c), 27, 28, 40, 42, 47, 48, 50(1), 60, 64, 69, 70, 162(2)(b), 165(3)(d)&(5), 259(1)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A and 7
  • Land Act, 2012Sections 65 & 66
  • Environment and Land Court Act, 2011Section 13(1), (2)(b), (d) & (e), (3) & (7)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 3, 4, 10, 13, 23, 24 and 26

Cases cited (11)

  • Pangae Holdings LLC Ano v Hacienda Development Limited & 2 others (2020)

    Parties cannot evade res judicata by merely adding other parties or causes of action in a subsequent suit

  • Speaker of the National Assembly v James Njuguna Karume
    (1992) KLR

    Where there is a clear statutory provision a party cannot resort to the Constitution for constitutional relief

  • Mumo Matemu v Trusted Society of Human Rights Alliance & another
    (2013) eKLR

    Standards of proof in constitutional petitions per Anarita Karimi Njeru

  • Anarita Karimi Njeru v Republic
    [1980] eKLR 154

    Constitutional violations must be pleaded with a reasonable degree of precision

  • Thorp v Holdsworth
    (1886) 3 Ch. D 637

    Object of pleadings is to bring parties to an issue and define issues

  • IEBC v Maina Kiai & 5 others
    (2017) eKLR

    Elements of res judicata and its jurisdictional consequence, to be addressed in limine

  • Kenya Commercial Bank Limited v Muiri Coffee Estates Limited & another
    (2016) eKLR

    Res judicata allows a litigant only one bite of the cherry; court examines pleadings and record of the previous case

  • Grays Jepkemoi Kiplagat v Zakayo Chepkonga Cheruiyot

    A constitutional petition must identify with reasonable precision the provisions allegedly violated

  • John Florence Maritime Service Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR

    Court may look at record of previous suit; res judicata applies to constitutional litigation in the clearest of cases

  • E.T v Attorney General & another
    (2012) eKLR

    Parties ought not to be permitted to 'panel beat' their cases by introducing new parties or innovative causes of action

  • Miller v Minister Of Pensions
    [1947] All ER 373

    Standard of proof on a balance of probabilities (quoted within the Court of Appeal judgment)

Jurisdiction invoked
Articles 22, 23 and 165(3)(d) and 5 as read with Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, 2011

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, "Mulinge & another v Charo & 3 others", Case Analysis (2022). Environment and Land Constitutional Petition 50 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13454/eng@2022-10-05

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