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ELCDismissedPetition dated 20th September, 2022 (Chuka ELC Petition)· [2024] KEELC 1126 (KLR)

Muchiri & 2 others v M’ribu & 4 others (Environment & Land Petition E001 of 2022) [2024] KEELC 1126 (KLR)

Environment and Land Court
29 February 2024
3,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a land dispute constitutional petition because the same issues had already been decided, confirming litigation must eventually end.

What this practically means

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Executive summary

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The petitioners, legal representatives of the estate of Muchiri Rithara (deceased), sought declarations that their constitutional rights under Articles 27, 40, 47 and 50 of the Constitution were violated by orders issued in Chuka CM LDT Case No. 1 of 2011 rectifying a decree adopted from a Land Disputes Tribunal award (Muthambi Division Tribunal Case No. 20 of 2010) in the boundary dispute between the deceased and the 1st respondent over parcels Muthambi/gatua/911 and 435. They sought declarations that the orders of 17th December 2018 and 9th June 2022 were ultra vires, null and void, and a permanent injunction against their implementation, contending that the rectification altered the Tribunal's award, that the 1st petitioner was joined without being heard in a suit that had abated, and that the 3rd petitioner, whose land was introduced into the decree, was never a party to the proceedings. The 1st respondent maintained he was merely seeking implementation of a judgment he won in 2010 and that litigation must come to an end. The State respondents (2nd to 5th) opposed the petition as failing the Anarita Karimi Njeru threshold, frivolous, vexatious and an abuse of process. The court framed two issues: whether the petitioners were entitled to the orders sought and costs. It held that the dispute had been fully litigated through the Tribunal, the Magistrate's Court and this Court, whose differently constituted bench dismissed the petitioners' appeal on 5th May 2020. That judgment remained in force, unappealed and unreviewed. The court declined to sit on appeal over its own decision of concurrent jurisdiction, found the issues res judicata and the petition defective, misconceived and an abuse of process, and dismissed the petition with costs to the respondents.

Key legal issues

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01

Whether the petitioners' constitutional rights were violated by the rectification of the decree in Chuka CM LDT Case No. 1 of 2011

Holding

No violation established; the dispute was fully litigated through the Tribunal, Magistrate's Court and this Court, and the appeal was dismissed.

Reasoning

The court found the genesis of the dispute was an LDT award adopted as judgment in Chuka LDT Case No. 10 of 2011, and that this Court (differently constituted) dismissed the petitioners' appeal on 5th May 2020. That judgment was never reviewed, set aside or appealed. The dispute therefore went through a complete judicial process, and the constitutional allegations amount to an attempt to reopen matters already determined.

p. 6
02

Whether the petition is res judicata and an abuse of the court process

Holding

Yes; the issues raised were substantially adjudicated upon by a court of competent jurisdiction and the petition is an abuse of process.

Reasoning

The court held that this Court cannot sit on appeal over its own decision of concurrent jurisdiction. The judgment of 5th May 2020 in Chuka ELC Appeal No. 6 of 2019 remains in force, and the proper remedies for dissatisfaction were appeal to the Court of Appeal or review. The petitioners instead filed a constitutional petition raising the same issues, which the court found defective, misconceived and mischievous.

p. 6

Legal principles established

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  • A court of concurrent jurisdiction cannot revisit issues already determined by its own final judgment; the remedy is appeal or review.
  • Issues already substantially adjudicated upon by a court of competent jurisdiction are res judicata.

Court orders

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  1. 1.The petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 27(1)&(2), 40(1)&(2), 47(1)&(3), 50(1)
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2013Rule 10

Cases cited (11)

  • Anarita Karimi Njeru –vs- Republic
    (1979) EKLR
  • Trust Society of Human Rights Alliance –vs- Attorney General & 2 Others
    (2012) eKLR
  • Republic –vs- Chonyi Division Land Dispute Tribunal & 2 Others Ex-parte Maugia Njagi & Another
    (2018) eKLR
  • Peter Ouma Mitai –vs- John Nyarara
    Kisii HCCCA No. 297 of 2005
  • Republic –vs- Attorney General & 3 Others Ex-Parte Peter Mungai Kimani & Another
    (2014) eKLR
  • Mary Kerubo Ogoti –vs- Chief Magistrate’s Court Kisii Law Courts & 5 Others
    (2017) eKLR
  • James Gacheru Kariuki & 19 others –vs- County Government of Mombasa & 56 Others
    (2019) eKLR
  • East Africa Pentecostal Churches Registered Trustees & 1754 others
    (2015) eKLR
  • Transcend Media Group Limited –vs- Independent Electoral & Boundaries Commission (IEBC)
    [2015] eKLR
  • Revital Health (EP 2) Limited & Another –vs- Ministry of Health & 5 Others
    [2015] EKLR
  • Beckey Supplies Limited & Another –vs- Attorney General & Another
    (2017) eKLR
Jurisdiction invoked
Articles 27, 40, 47 and 50 of the Constitution (supervisory/protection of fundamental rights jurisdiction)

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, "Muchiri & 2 others v M’ribu & 4 others (Environment & Land Petition E001 of 2022) [2024] KEELC 1126 (KLR)", Case Analysis (2024). Petition dated 20th September, 2022 (Chuka ELC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1126/eng@2024-02-29

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