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ELCDismissedJudicial Review application (Notice of Motion dated 30th November 2021)· [2024] KEELC 1390 (KLR)

Republic v District Land Registrar Kilifi Lands Office; Kombo & another (Exparte Applicants) (Judicial Review Application E6 of 2021) [2024] KEELC 1390 (KLR)

Environment and Land Court
13 March 2024
3,722 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 landowners' bid to force title registration, ruling the same dispute had already been finally decided and cannot be reopened.

What this practically means

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Executive summary

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The ex parte applicants sought an order of mandamus by a Notice of Motion dated 30th November 2021, filed under Order 53 Rule 3 of the Civil Procedure Rules, compelling the Land Registrar Kilifi to implement a National Land Commission determination gazetted on 15th February 2019 (Gazette Notice Vol. CXXI-No. 21 No. 1529), which had recommended revocation of a title to LR No. Kilifi/Jimba/341 and allocation of the land to the applicants. An interested party filed a replying affidavit and a preliminary objection dated 12th October 2023 arguing the application was barred by res judicata. The court noted the parties had agreed to dispose of the matter by written submissions; only the interested party filed submissions. The court traced a long history of litigation over the same parcel: Angote J.'s judgment of 8th May 2015 in Malindi Petition No. 11 of 2012 declared the applicants' titles void and declared Denman Properties the lawful proprietor; that judgment was applied to Malindi ELC Case No. 11 of 2013; Olola J. in Malindi ELC JR No. 1 of 2019 quashed the NLC determination as res judicata; and Olola J. dismissed the applicants' suit (Malindi ELC No. 19 of 2020) on 28th May 2021 as barred by res judicata. Earlier ex parte mandamus orders of 28th June 2022 had been set aside ex debito justitiae on 18th May 2023 with the interested party joined. Sustaining the preliminary objection, the court held the doctrine of res judicata under section 7 of the Civil Procedure Act extinguished its jurisdiction, that litigation over the same issue must end, and dismissed the motion with costs on 13th March 2024.

Key legal issues

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01

Whether the judicial review application is barred by res judicata

Holding

Yes. The same subject matter (LR No. Kilifi/Jimba/341 and Gazette Notice No. 1529) was determined in Malindi Petition No. 11 of 2012 (Angote J.), applied to Malindi ELC Case No. 11 of 2013, and the NLC determination was quashed and the same issue declared res judicata by Olola J. in Malindi ELC JR No. 1 of 2019 and in Malindi ELC No. 19 of 2020 dismissed on 28th May 2021.

Reasoning

The court traced a history of litigation between the same parties or their privies over the same parcel. Olola J. had already quashed the NLC determination concerning the Gazette Notice and dismissed a suit by the same applicants seeking the same relief. No appeal or review was preferred. The court held that litigation over the same issue 'ad infinitum ad nauseam' must end and sustained the preliminary objection on the strength of section 7 of the Civil Procedure Act and the cited authorities.

p. 8
02

Whether the preliminary objection was a proper preliminary objection on a pure point of law

Holding

Yes. The objection rested on res judicata, a pure point of law that could be determined on the pleadings and the record without ascertaining facts, fitting the Mukisa Biscuit and IEBC v Cheperenger tests.

Reasoning

The court recited the Mukisa Biscuit definition of a preliminary objection as a point of law argued on the assumption that all facts pleaded are correct, and the Supreme Court's warning against using preliminary objections as a sword. It found the res judicata objection fit this description and justified summary disposal to conserve judicial time.

p. 4

Legal principles established

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  • Res judicata bars the reopening of matters already fully and finally settled between the same parties or those litigating under the same title, because litigation must come to an end
  • A preliminary objection raising res judicata is a pure point of law which, if sustained, requires the court to down tools and strike out the suit in limine

Court orders

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  1. 1.The Preliminary Objection dated 12th October 2023 is sustained
  2. 2.The Notice of Motion dated 30th November 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3
  • Civil Procedure Actsection 7
  • Constitution of KenyaArticles 3, 10, 27, 40 and 47
  • Registered Land Act, Cap 300 (Repealed)Sections 10, 33 and 143

Cases cited (16)

  • Mashreq Bank P.S.C v Kuguru Food Complex Ltd
    [2018] eKLR
  • CCD v ENB, PKN, VD & BU
    [2018] eKLR
  • R v National Land Commission & Another Ex-parte Muktar Saman Olow
    [2015] eKLR
  • Robert Mutiso Lelli and Cabin Crew Investment Ltd v National Land Commission & 3 Others
    [2017] eKLR
  • R v National Land Commission ex-parte Holborn Properties Ltd
  • Lotta v Tanaki
    [2003] 2 EA 556
  • Sceneries Ltd v National Land Commission
    [2017] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
    (1969) EA 696
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
  • E.T v Attorney General & Another
    [2001] eKLR
  • Karia and Another v The Attorney General and Others
    [2005] 1 EA 83
  • DJC v BKL (Civil Suit E021 of 2021)
    [2022] KEHC 10189 (KLR)
  • Athman Ramadhan Kombo & another v Joseph Mbitha Kadenge & 4 others
    [2021] eKLR
  • Greenhalgh v Mallard
    (1943) 2 ALL ER 234
  • Denman Properties Ltd, Bond Street Properties Ltd, Holborn Properties Ltd, Royal Tulia Estate Ltd v The Hon. The AG & 6 Others and 36 Interested parties (Malindi Petition No. 11 of 2012)
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules (judicial review jurisdiction of the High Court/ELC)

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, "Republic v District Land Registrar Kilifi Lands Office; Kombo & another (Exparte Applicants) (Judicial Review Application E6 of 2021) [2024] KEELC 1390 (KLR)", Case Analysis (2024). Judicial Review application (Notice of Motion dated 30th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1390/eng@2024-03-13

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