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ELCDismissedEnvironment & Land Case 9 of 2021· [2022] KEELC 14538 (KLR)

Anthony & 2 others v Mbiti & another

Environment and Land Court
20 September 2022
AKA. K. Kaniaru
3,880 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled a family land dispute could proceed to full hearing, rejecting claims it had already been decided.

What this practically means

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Executive summary

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The three plaintiffs, sons of the 1st defendant through his estranged wife Lucia Ngari Njiru, sued their father and the 2nd defendant claiming that the 1st defendant had, at a family meeting, subdivided and gifted them portions of land parcel Mbeti/Gachuriri/413, which they occupied and developed, but which he later failed to transfer, instead allegedly colluding to transfer part to the 2nd defendant. They sought declarations of entitlement, cancellation and revocation of titles, registration as proprietors, and a permanent injunction. The 1st defendant filed a preliminary objection on five grounds: res judicata, matrimonial property, forum shopping, incompetence and abuse of process, and defective pleadings. Applying Mukisa Biscuits, the court held that grounds two to five were not pure points of law as they required ascertainment of facts. On res judicata, applying Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai elements, the court found that the Siakago Land Dispute Tribunal determination and the ensuing judicial review proceedings were nullities because the tribunal lacked jurisdiction under the repealed Land Disputes Tribunals Act to determine ownership of registered land, and adoption of the award could not cure the defect. The other cited suits failed the res judicata test for want of identity of parties or subject matter, or because they remained pending. The preliminary objection was dismissed with costs in the cause, and the parties were directed to take dates for directions in the related pending matters, Embu ELC No. E006 of 2022 and Civil Appeal No. E006 of 2021.

Key legal issues

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01

Whether grounds two to five of the preliminary objection (matrimonial property, forum shopping, incompetence, abuse of process/drafting) qualify as preliminary objections

Holding

They do not; they require evidence and ascertainment of facts and are therefore unfit to be raised as preliminary objections.

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. The matrimonial property ground would require investigating the genesis of acquisition and contributions, a matter reserved for the High Court in a matrimonial dispute. The other grounds likewise require ascertaining facts.

02

Whether the Siakago Land Dispute Tribunal Case 18 of 2011 and the ensuing judicial review proceedings render the suit res judicata

Holding

No. The tribunal lacked jurisdiction over ownership of registered land, so its determination and the court's adoption of the award were nullities.

Reasoning

Section 3(1) of the repealed Land Disputes Tribunals Act limited tribunals to boundary division, claims to occupy or work land, and trespass. Ownership of registered land fell outside that mandate. A determination made without jurisdiction is a nullity of no legal force, and adoption by a court could not validate it. The elements of res judicata under Section 7 of the Civil Procedure Act were therefore not satisfied.

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Whether the other cited suits (Nairobi HCCC 12 of 2012, Siakago MCL & E56 of 2018, Embu CS 305 of 2013, Embu CA E006 of 2021, Embu ELC E006 of 2022) render the suit res judicata

Holding

No. Some involved different parties or different subject parcels; the appeal and ELC E006 of 2022 are still pending and thus not finally determined.

Reasoning

Res judicata requires the same parties litigating under the same title over the same matter, heard and finally determined by a competent court. Nairobi HCCC 12 of 2012 and Siakago MCL & E56 of 2018 involved different parties; Embu CS 305 of 2013 concerned a different parcel (Mbeti/Gachuriri/385); the appeal and E006 of 2022 remain pending.

p. 7

Legal principles established

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  • A determination by a Land Disputes Tribunal on ownership of registered land, being outside its statutory jurisdiction, is a nullity and cannot found a plea of res judicata, even where adopted by a court.
  • A preliminary objection cannot be raised where facts are disputed or have to be ascertained, or where the court's discretion is sought.
  • For res judicata, the former suit must have been heard and finally determined; a pending suit cannot be res judicata.

Court orders

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  1. 1.The preliminary objection dated August 10, 2022 is dismissed
  2. 2.Parties to take a date at the registry for directions with regard to Embu ELC No. E006 of 2022 and Civil Appeal No. E006 of 2021, which are pending before the court and relate to the same subject matter
  3. 3.Costs in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied); Environment and Land Court Act

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, "Anthony & 2 others v Mbiti & another", Case Analysis (2022). Environment & Land Case 9 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14538/eng@2022-09-20

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