Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Petition E001 of 2022· [2023] KEELC 16601 (KLR)

Tuwei v Land Dispute Tribunal, Nandi, Kapsabet & 3 others

Environment and Land Court of Kenya
22 March 2023
2,272 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

#

The Environment and Land Court dismissed a landowner's constitutional petition because he had already litigated the same land dispute in a previous case.

What this practically means

#

Executive summary

#
William Kitur Tuwei petitioned the Environment and Land Court at Kapsabet seeking declarations that his constitutional right to property over Mogobich/Cheptililik Block 2/58 was violated by the illegal cancellation and subdivision of the parcel following an award of the Kapsabet Land Disputes Tribunal adopted in Land Dispute Case No 57/2007. He sought restitution of the title, a permanent injunction, compensation and costs, relying on Articles 40, 22 and 258 of the Constitution and the Land Registration Act. The 2nd Respondent opposed, contending the petition was sub judice and res judicata, the same issues having been litigated in Eldoret ELC Case No 35/2020, where a preliminary objection was upheld and the suit struck out, with an appeal pending. The 1st, 3rd and 4th Respondents relied on replying affidavits detailing the registration history. The Court framed four issues, chief among them res judicata. Although the judgment in the prior suit was not exhibited, the Court searched kenyalaw.org, presumed its genuineness under Section 90 of the Evidence Act, and found that the issues - including the Tribunal's jurisdiction - had been raised and determined, engaging explanation (4) to Section 7 of the Civil Procedure Act. Holding the petition res judicata, the Court declined to determine the remaining issues, dismissed the petition with costs, and vacated the interim status quo orders issued on 25 July 2021.

Key legal issues

#
01

Whether the petition was res judicata

Holding

Yes - the same issues were heard and determined in Eldoret ELC Case No 35/2020, where a preliminary objection on res judicata was upheld and the suit struck out

Reasoning

The 2nd Respondent showed a prior suit between the same parties over the same parcel. Though the judgment in that suit was not exhibited, the Court searched kenyalaw.org, found the reported decision, and presumed its genuineness under Section 90 of the Evidence Act. The jurisdiction of the Land Disputes Tribunal was deemed raised and determined under explanation (4) of Section 7 of the Civil Procedure Act.

p. 5
02

Whether the Petitioner's property rights were violated

Holding

Not determined - the res judicata finding disposed of the petition

Reasoning

Having found the petition res judicata, the Court expressly declined to determine the remaining issues, including the alleged violation of Article 40 rights, and dismissed the petition with costs.

p. 6

Legal principles established

#
  • A published court decision may be presumed genuine under Section 90 of the Evidence Act even where not formally exhibited by the parties
  • Issues already found res judicata in a prior suit cannot be re-litigated in a subsequent constitutional petition

Court orders

#
  1. 1.Petition dismissed with costs
  2. 2.Orders of status quo earlier issued in the case vacated
Jurisdiction invoked
Articles 22, 162(2)(b) and 258 of the Constitution (petition filed in the Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tuwei v Land Dispute Tribunal, Nandi, Kapsabet & 3 others", Case Analysis (2023). Environment & Land Petition E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16601/eng@2023-03-22

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