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ELCDismissedMeru Miscellaneous Application (ELC)· [2024] KEELC 53 (KLR)

Kamilinchui & 5 others v Kimbui & another (Miscellaneous Application E007 of 2023) [2024] KEELC 53 (KLR)

Environment and Land Court
17 January 2024
CNCK NZILI
2,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to enforce a council of elders' land decision because a valid court judgment already existed between the same parties.

What this practically means

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Executive summary

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The applicants, nephews of the late Jason Kiamba Kimbui, applied under Article 159(2)(c) of the Constitution, Section 59(c) of the Civil Procedure Act and Order 46 Rule 20(1) of the Civil Procedure Rules for the adoption and entry as a consent judgment of a decision of the Njuri Ncheke Council of Elders dated 19.8.2023, together with an order directing the Land Registrar, Meru, to excise 15 acres from LR No. Kianjai/Mituntu/77 in their favour. The respondents, executors and administrators of the deceased's estate and registered proprietors of the suit land, opposed the application, contending it was res judicata: the trespass dispute and counterclaim between the parties had been conclusively determined by this court in Meru ELC No. 60 of 2019 in a judgment dated 3.5.2023, which had not been appealed or reviewed. They argued the elders' panel was not a court of appeal and could not displace the court's decree. After written submissions, the court surveyed the constitutional framework on alternative and traditional dispute resolution mechanisms and the caselaw confirming their promotion under Article 159(2)(c), subject to the limits in Article 159(3). The court held that although the elders' panel had jurisdiction over such disputes, adopting a post-judgment award that would upset a subsisting, unappealed and unreviewed decree would contravene the court's public policy to honour its decrees and fidelity to the rule of law and the Constitution unless overturned by a superior court. The application was dismissed with costs.

Key legal issues

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Whether a TDRM award can be adopted as a consent judgment where a lawful decree already exists

Holding

The court declined to adopt the Njuri Ncheke decision because a prior judgment between the parties, delivered on the merits and never appealed or reviewed, remained in force

Reasoning

Although Article 159(2)(c) obliges courts to promote TDRMs, Article 159(3) limits this where outcomes are inconsistent with the Constitution or written law. The applicants had submitted to the elders' process post-judgment without seeking review or appeal of the court's decree. Adopting the award would upset a parallel subsisting decree, offending public policy, the rule of law and the Constitution, unless set aside by a superior court.

p. 5
02

The constitutional status of TDRMs and ADR

Holding

Courts are constitutionally bound to promote ADR and TDRMs under Article 159(2)(c), subject to the limits in Article 159(3) and the Bill of Rights

Reasoning

The court reviewed extensive caselaw establishing that ADR and TDRMs are recognised and complementary to judicial process, but that courts do not rubber-stamp such decisions; they must accord with the law to be recognised and enforced through the Civil Procedure Act, the Rules or the Arbitration Act.

p. 3

Legal principles established

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  • A court will not adopt a traditional dispute resolution award that conflicts with its own subsisting, unappealed decree

Court orders

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  1. 1.The application seeking adoption of the Njuri Ncheke decision as a consent judgment and implementation by the Land Registrar was dismissed with costs
Jurisdiction invoked
Article 159(2)(c) of the Constitution; Section 59(c) of the Civil Procedure Act; Order 46 Rule 20(1) Civil Procedure Rules; Sections 1A, 1B 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamilinchui & 5 others v Kimbui & another (Miscellaneous Application E007 of 2023) [2024] KEELC 53 (KLR)", Case Analysis (2024). Meru Miscellaneous Application (ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/53/eng@2024-01-17

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