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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is res judicata in light of Mombasa High Court Judicial Review No. 12/24 of 2011
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.
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.
Whether the suit amounts to an abuse of court process
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.
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.
Who bears the costs of the Notice of Motion
Costs follow the event; the unsuccessful 2nd Defendant to pay the Plaintiff's costs of the application.
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.
Legal principles established
#- 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
#- 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.That the already scheduled two (2) hearing dates of this suit on 23rd and 24th July, 2024 to be maintained whatsoever.
- 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.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.