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ELCDismissedNot stated in the judgment (suit instituted by Plaint dated 9th June, 2009)· [2024] KEELC 5261 (KLR)

Kenya Anti – Corruption Commission v Lobo & another (Sued as legal representative/administrator of the Estate of Paul Lobo Benard Atati) & another (Environment & Land Case 175 of 2009) [2024] KEELC 5261 (KLR)

Environment and Land Court of Kenya
2 July 2024
9,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Mombasa ruled that a past judicial review case does not block EACC's land fraud suit, which will proceed to full trial.

What this practically means

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Executive summary

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The 2nd Defendant, Bernard Atati, brought a Notice of Motion dated 20th May, 2024 seeking to strike out the Ethics and Anti-Corruption Commission's suit instituted by Plaint dated 9th June, 2009 as res judicata, together with costs. He relied on the decision of Muriithi J of 12th March 2012 in Mombasa High Court Judicial Review No. 12 of 2011 (Republic v Registrar of Titles, Mombasa & the Attorney General Ex-Parte Bernard Atati), which quashed Gazette Notice No. 15570 of 26th November 2010 revoking his titles to MN/1/2408 and MN/1/2410 and prohibited interference with the titles, contending those were orders in rem binding all parties. Neither the Plaintiff nor the 1st Defendant filed responses, and the court determined the application on its merits. The court framed three issues: res judicata under Section 7 of the Civil Procedure Act, abuse of process, and costs. It held the doctrine was improperly invoked: the Plaintiff was not a party to the judicial review, the judicial review only tested the legality of the Registrar's decision and did not hear and finally determine the substantive land dispute, and land claims require viva voce evidence and determination on merit which judicial review cannot provide. The ELC, having jurisdiction under Article 162(2)(b), was the proper forum. On abuse of process, the court found the suit raises plausible factual issues fit only for plenary hearing. The application was dismissed with costs to the Plaintiff, and the suit's hearing dates of 23rd and 24th July 2024 were maintained.

Key legal issues

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01

Whether the suit is res judicata in light of Mombasa High Court Judicial Review No. 12/24 of 2011

Holding

The suit is not res judicata. The Plaintiff was not a party to the judicial review proceedings; the issues are different; judicial review is limited to the legality of the decision-making process and cannot conclusively determine a land title dispute on the merits.

Reasoning

The court compared the prayers in the 2009 Plaint with the orders in the judicial review. The judicial review challenged only the ultra vires cancellation of title via Gazette Notice 15570 and resulted in certiorari and prohibition. The present suit seeks declarations of fraud, rectification of the register and permanent injunction - remedies reserved to the ELC under Article 162(2)(b). The Plaintiff was not a party nor properly represented by the Attorney General, and the former suit was not a hearing on the merits of the land dispute.

p. 15
02

Whether the suit amounts to an abuse of court process

Holding

No. The suit raises plausible and pertinent factual issues on the propriety of titles that can only be resolved at a plenary hearing, not via a summary striking-out application.

Reasoning

The court held that where an application for striking out is made, the court should not undertake a minute analysis of disputed facts; such analysis belongs to the trial. The pleadings raise serious factual disputes warranting full trial with oral evidence and cross-examination, so the summary process sought by the 2nd Defendant was inappropriate.

p. 15
03

Who bears the costs of the Notice of Motion

Holding

Costs follow the event; the unsuccessful 2nd Defendant to pay the Plaintiff's costs of the application.

Reasoning

Section 27 of the Civil Procedure Act vests a discretion in the court, with costs ordinarily following the event unless there is good reason to order otherwise. Having failed to demonstrate res judicata or abuse of process, the 2nd Defendant, having participated in the hearing, was to bear the Plaintiff's costs of the application.

p. 17

Legal principles established

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  • Judicial review proceedings cannot constitute res judicata in respect of a substantive land dispute requiring viva voce evidence and a determination on the merits
  • A party cannot evade or escape the doctrine of res judicata by cosmetic additions of parties or issues to pleadings
  • An application to strike out pleading is not the forum for microscopic analysis of disputed factual issues, which belong to trial

Court orders

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  1. 1.That the Notice of Motion application dated 20th May, 2024 be and is hereby found to lack merit and the same is hereby dismissed with costs.
  2. 2.That the already scheduled two (2) hearing dates of this suit on 23rd and 24th July, 2024 to be maintained whatsoever.
  3. 3.That the costs of the Notice of Motion application dated 20th May, 2024 are awarded to the Plaintiff/Respondent herein to be borne by the 2nd Defendant herein.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 159, 159(2)(d), 162, 162(2)(b), 25(c), 50(1) & (2)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 7, 8, 27(1)
  • Civil Procedure Rules, 2010Order 2 Rule 9 & 15; Order 51 Rule 1
  • Government Lands ActCap 280
  • Trust Land ActCap 288
  • Anti-Corruption and Economic Crimes Act2003
  • Environment and Land Court ActNo. 19 of 2011, Section 13
  • Limitation of Actions ActChapter 22

Cases cited (24)

  • John Florence Maritime Services Limited & Another – Versus - Cabinet Secretary Transport & Infrastructure & 3 Others
    [2015] eKLR
  • The Independent Electoral and Boundaries Commission – Versus - Maina Kiai & 5 others
    [2017] eKLR
  • Suleiman Said Shabhal – Versus - Independent Electoral & Boundaries Commission & 3 Others
    [2014] eKLR
  • Hadkinson – Versus - Hadkinson
    [1952] ALL ER 567
  • Accredo AG & 3 others – Versus - Steffano Uccelli & another
    [2019] eKLR
  • Owners of the Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Stanley Kaunga Nkarichia – Versus - Meru Teachers College & another
    [2016] eKLR
  • Nicholas Njeru – Versus - the Attorney General and 8 Others
    Civil Appeal No. 110 of 2011 [2013] eKLR
  • Abok James Odera – Versus - John Patrick Machira
    Civil Application No. Nai. 49 of 2001
  • Christopher Kenyariri – Versus - Salama Beach
    (2017) eKLR
  • Lal Chand – Versus - Radha Kishan
    AIR 1977 SC 789
  • Lotta – Versus - Tanaki
    [2003] 2 EA 556
  • Gurbachan Singh Kalsi – Versus - Yowani Ekori
    Civil Appeal No. 62 of 1958
  • E.T – Versus - Attorney General & Another
    (2012) eKLR
  • Omondi Versus - National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu – Versus - Wambugu and another
    Nairobi HCCC No.2340 of 1991 (unreported)
  • Republic – Versus - National Transport & Safety Authority & 10 others Ex - Parte James Maina Mugo
    [2015] eKLR
  • Ware Transport Limited – Versus Third Engineering Bureau of China City Construction Group Co Limited Tiba Freight Forwarders Limited (Third party)
    (Environment & Land Case 252 of 2021) [2024] KEELC 1550 (KLR) (7 March 2024) (Ruling)
  • Tee Gee Electrics and Plastics Company Ltd – Versus - Kenya Industrial Estates Limited
    [2005] KLR 97; LLR CAK 6880
  • Industrial and Commercial Development Corporation – Versus - Daber Enterprises Limited
    [2000] eKLR
  • Wenlock – Versus - Moloney and Others
    [1965] 1 W.L.R. 1238
  • Jasbir Rai Singh – Versus - Tarchalan Singh
    eKLR (2014)
  • Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited
    eKLR (2014)
  • Morgan Air Cargo Limited – Versus - Evrest Enterprises Limited
    [2014] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Kenya Anti – Corruption Commission v Lobo & another (Sued as legal representative/administrator of the Estate of Paul Lobo Benard Atati) & another (Environment & Land Case 175 of 2009) [2024] KEELC 5261 (KLR)", Case Analysis (2024). Not stated in the judgment (suit instituted by Plaint dated 9th June, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5261/eng@2024-07-02

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