Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Constitutional Petition E003 of 2022· [2023] KEELC 18921 (KLR)

Otieno (Suing as a representative of Kobunga Ranching Group) v Land Adjudication Officer Homa Bay & 2 others; Jokaete Ranching Group & 2 others (Interested Parties)

Environment and Land Court
19 July 2023
1,884 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a land ownership petition because the same dispute had already been fully decided in earlier court cases.

What this practically means

#

Executive summary

#
The petitioner, suing as a representative of Kobunga Ranching Group under Article 22(2)(b) of the Constitution, petitioned the Environment and Land Court at Homa Bay seeking declarations that the group is the sole owner of parcel Kanyamwa/Kabonyo/Kwandiku/475 (initially 105.40 hectares), an order of certiorari quashing the respondents' decision to issue titles over subdivisions 1940 (35.0 ha) and 1941 (36.0 ha), a declaration that due process was not followed, a permanent injunction, and an order compelling the 2nd respondent to issue a title over the original parcel. The respondents, represented by the Attorney General, filed no response or submissions despite opportunity. The interested parties, through a replying affidavit of their chairman, opposed the petition, contending that the same issues had been litigated in Kisii HCCC No. 102 of 2003 (OS), upheld on appeal in Civil Appeal No. 277 of 2012, and in Homa Bay ELCC No. 31 of 2021, rendering the petition res judicata. The court framed two issues: whether the petition is res judicata and, if not, whether it is tenable. Applying section 7 of the Civil Procedure Act, Mukisa Biscuit on preliminary objections, and dictionary definitions of res judicata, the court held that a constitutional petition is a 'suit' and that the same parties and land had been finally determined in the prior competent proceedings. It further found the petitioner's proof short of the balance-of-probabilities standard per Kirugi v Kabiya. The petition was dismissed with costs to the petitioner under the proviso to section 27(1) of the Civil Procedure Act and Rai v Rai.

Key legal issues

#
01

Whether the petition is res judicata

Holding

The petition is res judicata because the same parties or parties under whom they claim and the same land were involved in Kisii HCCC No. 102 of 2003 (OS), Civil Appeal No. 277 of 2012 and Homa Bay ELCC No. 31 of 2021, in which the issues were finally determined by competent courts.

Reasoning

The court applied section 7 of the Civil Procedure Act and the elements of res judicata from Black's Law Dictionary: an earlier decision, a final judgment on the merits, and the same parties or parties in privity. It found the prior suits involved the same parties and the same land, and that a constitutional petition is a 'suit' under section 2 of the Civil Procedure Act, so the doctrine bars the petition.

p. 4
02

Whether the petition is tenable

Holding

The petition is unmeritorious and was dismissed; the petitioner also failed to discharge the burden of proof on a balance of probabilities.

Reasoning

Having found the petition res judicata, the court held the petitioner was not entitled to the orders sought. It further applied Kirugi v Kabiya on the burden of proof, finding the petitioner's proof short of the required standard. The petition was dismissed with costs to be borne by the petitioner under the proviso to section 27(1) of the Civil Procedure Act.

Legal principles established

#
  • A constitutional petition is a suit for purposes of the doctrine of res judicata under section 7 of the Civil Procedure Act
  • Where a petition is res judicata, the petitioner is not entitled to the orders sought
  • The burden of proof on the plaintiff is not lessened even where the case is heard by formal proof or on written submissions

Court orders

#
  1. 1.The petition is dismissed
  2. 2.Costs of the petition shall be borne by the petitioner

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2(1), 10, 19, 20, 22, 22(2)(b), 23(3), 27, 28, 29, 40, 47, 48, 50(1), 63, 68, 159, 162, 165, 258, 259
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
  • Land Adjudication ActChapter 284
  • Land Registration ActSection 25(1)
  • Civil Procedure ActSections 2, 7, 27(1)

Cases cited (6)

  • Kenya Akiba Micro Financing Ltd-vs-Ezekiel Chebii and 14 others
    (2012) KLR

    Relied on by petitioner's counsel on entitlement to constitutional relief

  • Mukisa Biscuit Manufacturing Company Ltd-vs-West End Distributors
    (1969) EA 696

    Definition of a preliminary objection

  • Salama Beach-vs-Christopher Kenyariri
    (2019) eKLR

    Principle of res judicata

  • Dr Ali Wario-vs-Dr John Ngondu
    (2011) eKLR

    Principle of res judicata

  • Kirugi and another-vs-Kabiya and 3 others
    (1987) KLR 347

    Burden on plaintiff to prove case on balance of probabilities, not lessened by formal proof

  • Rai-vs-Rai
    (2014) eKLR

    Costs follow the event under proviso to section 27(1) Civil Procedure Act

Jurisdiction invoked
Articles 22, 23, 165 of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Otieno (Suing as a representative of Kobunga Ranching Group) v Land Adjudication Officer Homa Bay & 2 others; Jokaete Ranching Group & 2 others (Interested Parties)", Case Analysis (2023). Environment and Land Constitutional Petition E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18921/eng@2023-07-19

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