Keino & 2 others (Jointly Sued as the Trustees of the National Olympic Committee - Kenya) v Gitau & 8 others (Environment and Land Case Civil Suit E249 of 2021) [2024] KEELC 48 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out the National Olympic Committee's land claim because the National Land Commission had already decided the same dispute, and its decision still stands.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is statute-barred under the Limitation of Actions Act
The limitation question could not be resolved at the interlocutory stage and was a matter for trial; in any event, the claim is founded on fraud so Section 26 may apply
The Defendants cited Section 18, which concerns equitable interests, whereas the competing claims here are legal interests in land. The applicable provision for recovery of land is Section 7 (12 years), but the claim is founded on allegations of fraud, engaging Section 26 under which time runs from discovery of the fraud. The Court found the circumstances convoluted and held limitation could only be determined upon trial.
Whether the suit is res judicata and an abuse of process
Yes – the parties, subject matter and cause were substantially the same as the NLC determination of April 28, 2017, which remains a competent decision; the suit was struck out
The NLC determination revoked the Plaintiff's grant as illegal and fraudulent and directed issuance of a new grant to the Defendants. The parties and subject matter before the NLC and this Court are substantially the same. Reports of investigative agencies cannot ground res judicata, and ELC 128 of 2008 was withdrawn without determination, but the NLC decision stands unimpaired, being challenged only in JR 32 of 2018. Re-hearing ownership would re-determine questions already answered, contrary to res judicata.
Whether the Plaintiff was entitled to temporary injunction
Not considered, as the suit was struck out
Because the Defendants' striking-out application succeeded and the entire suit was struck out, the Court found it unnecessary to evaluate the injunction criteria of a prima facie case, irreparable harm and the balance of convenience.
Legal principles established
#- Investigative or administrative reports (e.g. by the DCI, Commissioner of Lands, Department of Surveys) are not judicial decisions and cannot found a plea of res judicata
- A suit before the ELC is res judicata where the same parties and subject matter were heard and determined by the National Land Commission and that decision remains unchallenged and un-set-aside
- A suit re-litigating issues already determined by the National Land Commission constitutes an abuse of process and is liable to be struck out
Court orders
#- 1.The application dated March 10, 2022 (referred to in the final orders as February 10, 2022) is found to be merited.
- 2.The Plaintiff's suit and application dated July 5, 2021 are struck out.
- 3.The Plaintiff shall bear the costs of the two applications and the suit.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Act and Civil Procedure Rules (applications under Section 3A, Order 40 and Order 2 Rule 15)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keino & 2 others (Jointly Sued as the Trustees of the National Olympic Committee - Kenya) v Gitau & 8 others (Environment and Land Case Civil Suit E249 of 2021) [2024] KEELC 48 (KLR)", Case Analysis (2024). ELC Suit (Nairobi) – Notice of Motion dated July 5, 2021 and Notice of Motion dated March 10, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/48/eng@2024-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.