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ELCOtherPetition No E007 of 2023· [2024] KEELC 6950 (KLR)

Maingi (Suing on Behalf of the Estate of M’Imangi Mutanthi - Deceased) v Land Adjudication & Settlement Officer Igembe South Sub County Adjudication Officer & 3 others; Miriti & another (Interested Parties) (Petition E007 of 2023) [2024] KEELC 6950 (KLR)

Environment and Land Court
16 October 2024
CNC K Nzili
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioner filed a constitutional petition challenging the ruling and proceedings of the Land Adjudication Officer, Igembe South Sub-County, made on 17.11.2022 in A/R Objections No. 116 and 117 over Parcels 1562 and 12946 Amung'enti 'A' Adjudication Section, alleging infringement of Articles 35, 40, 47, 48, 50, 60, 64, 68 and 159 of the Constitution through the alleged fraudulent deprivation of 8 acres of ancestral land. Together with the petition, the petitioner filed a notice of motion dated 13.5.2024 seeking conservatory orders; that application was dismissed for non-prosecution on 16.9.2024 after the petitioner failed to attend, and an application to set aside that dismissal was filed. At a mention, counsel for the interested parties raised a preliminary objection that the petition was res judicata, citing Meru ELC JR (E015/E055) of 2022, in which the petitioner, as ex parte applicant, had sought to quash the same decision of 17.11.2022. That suit was struck out on 4.4.2024 for want of locus standi, with costs to the respondents and interested parties. Counsel for the petitioner conceded the existence of the earlier judicial review suit. The court considered the parameters for res judicata set out in John Florence Maritime Services Ltd v Cabinet Secretary for Transport (Supreme Court), including the requirement of a final judgment on the merits, and the recognized exception where a constitutional petition raises issues and reliefs beyond judicial review. The court held that the earlier strike-out was not a determination on the merits with finality, that judicial review and constitutional jurisdictions differ in scope and remedies, and that exceptional circumstances existed, with a risk of substantial injustice if the petition were not heard on the merits. The preliminary objection was dismissed with no order as to costs, allowing the main petition to proceed to hearing.

Key legal issues

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01

Whether the petition is barred by res judicata

Holding

No - the earlier judicial review motion was struck out without a determination on the merits, so no final judgment exists

Reasoning

The former Meru ELC JR suit was struck out for want of locus standi, not decided on the merits. Res judicata requires a former final judgment on the merits. Further, judicial review and constitutional petition jurisdictions differ in considerations and reliefs available, and the petitioner pleaded exceptional circumstances and risk of substantial injustice.

p. 4
02

Whether exceptional circumstances justify departing from res judicata

Holding

Yes - hearing the constitutional petition on the merits is necessary to avoid substantial injustice

Reasoning

Applying John Florence Maritime Services, the petitioner invoked constitutional grounds (fair administrative action, property rights) that a judicial review court could not fully determine. The court found exceptional circumstances existed and that failing to hear the petition on its merits would occasion substantial injustice.

p. 4

Legal principles established

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  • Res judicata requires a former final judgment on the merits by a court of competent jurisdiction with identical parties, subject matter and cause of action
  • A party seeking an exception to res judicata for a constitutional petition must show substantial injustice and exceptional circumstances
  • A judicial review determination is not a final determination of issues under a constitutional petition since considerations, procedure and reliefs differ

Court orders

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  1. 1.The preliminary objection on res judicata is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 35, 40, 47, 48, 50, 60, 64, 68, 159

Cases cited (5)

  • John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport and Infrastructure & others
    (2021) eKLR
  • CCK & others vs Royal Media Service Ltd & others
    (2014)
  • Kenya Hotel Properties Ltd vs AG & others
    (2022) KESC 62 (KLR)
  • Raila Odinga & others vs IEBC & others
    (2013) KESC 8 (KLR)
  • MituBell Welfare Society vs Kenya Airports Authority and others
    (2021) eKLR
Jurisdiction invoked
Articles 35, 40, 47, 48, 50, 60, 64, 68 & 159 of the Constitution (petition invoking constitutional 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, "Maingi (Suing on Behalf of the Estate of M’Imangi Mutanthi - Deceased) v Land Adjudication & Settlement Officer Igembe South Sub County Adjudication Officer & 3 others; Miriti & another (Interested Parties) (Petition E007 of 2023) [2024] KEELC 6950 (KLR)", Case Analysis (2024). Petition No E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6950/eng@2024-10-16

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