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ELCDismissedPetition 1 of 2014 & Judicial Review 1 of 2013 & 2 of 2014 (Consolidated)· [2023] KEELC 18372 (KLR)

Martin Maurice Odhiambo v Joel Kipsang A Ngeno & 6 others

Environment and Land Court
15 June 2023
3,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a decade-old land dispute, ruling that parties cannot endlessly re-litigate issues a court has already decided.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (Oundo, J) determined the petitioner's notice of application dated May 12, 2022 in consolidated Petition 1 of 2014 and Judicial Review 1 of 2013 and 2 of 2014. The applicant sought conservatory orders over land parcel Kericho/Kipchimchim/1690, an order that the matter be placed before the Chief Justice to empanel a bench of 2 to 3 judges, an order compelling the 6th Respondent to file transfer documents, enforcement of an order of Sergon J dated April 4, 2014, and a review of all orders, rulings and decrees in the consolidated matter. The 1st, 4th and 6th Respondents opposed, arguing the issues were res judicata following the judgment of May 11, 2018, the dismissal of the applicant's stay application on June 28, 2019, and the dismissal of his Court of Appeal application for extension of time on July 9, 2021. The court held that the issues raised had been determined time and again; that the application was an attempt to re-litigate through the back door, abusive, frivolous and vexatious; that no substantial question of law had been raised to warrant empanelment under Article 165(4); and that review lies only for a patent error apparent on the face of the record. The application was dismissed with costs.

Key legal issues

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01

Whether the application seeking review, empanelment and conservatory orders was merited

Holding

The application was dismissed as res judicata, frivolous, vexatious and an abuse of process

Reasoning

The issues raised had already been determined by the judgment of May 11, 2018 and the ruling of October 28, 2021, which found earlier applications res judicata. The Applicant's appeal avenues had been exhausted, and the present application merely re-dressed the same grievances seeking to impugn title to Kericho/Kipchimchim/1690. Litigation must come to an end.

p. 6
02

Whether a substantial question of law existed warranting empanelment under Article 165(4)

Holding

No; the Applicant failed to raise a substantial question of law

Reasoning

Relying on Chunilal Mehta, a substantial question of law must be of general public importance or affect parties' rights and not be finally settled. All issues raised had already been heard and determined on merit, so there was no substantial question to remit to the Chief Justice for empanelment of a bench.

p. 6

Legal principles established

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  • The power to empanel a bench under Article 165(4) is to be highly exercised and arises only where circumstances are special and the jurisdiction is not ordinary
  • Review lies only for correction of a patent error of law or fact apparent on the face of the record, not for a fresh hearing or arguments
  • A party who re-litigates already-determined issues under a different guise abuses the court process

Court orders

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  1. 1.The Applicant's application dated May 12, 2022 is dismissed with costs
Jurisdiction invoked
Articles 22(1), 23(1, 3b, 3c), 50(1) and 165(2b) of the Constitution; Order 45 and Order 53 of the Civil Procedure Rules; sections 1A, 2A and 3A of the Civil Procedure 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, "Martin Maurice Odhiambo v Joel Kipsang A Ngeno & 6 others", Case Analysis (2023). Petition 1 of 2014 & Judicial Review 1 of 2013 & 2 of 2014 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18372/eng@2023-06-15

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