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ELCDismissedMakueni ELC Case (Unstated Number on the face of the ruling)· [2024] KEELC 7156 (KLR)

Kivumbu (Suing as the Legal Representative of the Estate of Kivumbu Ndwiwa (Deceased)) v Mwau & 2 others (Environment & Land Case E008 of 2023) [2024] KEELC 7156 (KLR)

Environment and Land Court
30 October 2024
3,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Makueni Environment and Land Court dismissed a defendant's attempt to throw out a land dispute, because the defendant failed to prove the case had already been decided.

What this practically means

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Executive summary

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This is a ruling on a Notice of Preliminary Objection dated 2nd February 2024 raised by the 1st Defendant in a suit by the Plaintiff, on behalf of the estate of Kivumbu Ndwiwa (deceased), contesting the alleged fraudulent transfer of 4.6 hectares from parcel Nzaui/Kalamba/638 to parcel Nzaui/Kalamba/594 on 18th April 2023, and seeking injunctions, cancellation and re-issuance of titles, and damages. The 1st Defendant objected on six grounds: res judicata in light of four prior suits; suit brought under the wrong provisions of law; non-joinder of the Attorney General; statutory ouster of jurisdiction over boundary disputes under Section 18(2) of the Land Registration Act; failure to exhaust statutory remedies; and abuse of process. Both parties filed written submissions. The court framed two issues: whether the suit is res judicata and whether the court has jurisdiction. Relying on the Mukisa Biscuits doctrine and its progeny, the court held that the 1st Defendant failed to produce the pleadings and decisions of the former suits to establish the conjunctive elements of res judicata. On jurisdiction, the court accepted it cannot determine boundary disputes but held that whether the claim is a boundary dispute or fraudulent rectification of the register involves facts requiring evidence; further, no defence had been filed, so the Plaintiff's assertions stood uncontroverted. The preliminary objection was dismissed with costs on 30th October 2024.

Key legal issues

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01

Whether the suit is res judicata the previous suits cited

Holding

Res judicata was not established as the 1st Defendant failed to produce the pleadings and decisions in the former suits

Reasoning

The court restated the conjunctive elements of res judicata under Section 7 of the Civil Procedure Act. Although the Plaintiff admitted the parties litigated under the same title, the burden lay on the objector to demonstrate that the matter was directly and substantially in issue in the former suits. Without the pleadings and decisions of the cited suits, the court could not make that determination and found the objection unproven.

p. 6
02

Whether the court lacks jurisdiction over a boundary dispute and whether statutory remedies under the Land Registration Act had to be exhausted

Holding

The preliminary objection on jurisdiction failed because it raised factual matters requiring evidence and no defence had been filed

Reasoning

The court acknowledged it has no jurisdiction to hear and determine boundary disputes, but noted the Plaintiff's claim is framed as rectification of the land register under Sections 79, 80 and 26 of the Land Registration Act. Whether the claim is in truth a boundary dispute or fraudulent rectification is a question of fact to be ascertained by evidence, unsuitable for a preliminary objection. Further, the absence of a defence meant the Plaintiff's assertions were uncontroverted.

p. 8
03

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

Holding

The objection fitted the Mukisa Biscuits description insofar as res judicata and jurisdiction can dispose of the matter without ascertaining facts, but ultimately failed

Reasoning

The court adopted the Mukisa Biscuits and Oraro v Mbaja formulations, holding that res judicata and jurisdiction may be determined preliminarily without ascertaining facts. However, a proper objection must stem from the pleadings; in the absence of a defence, the Plaintiff's pleaded facts were presumed uncontroverted and could not support the objection.

p. 9

Legal principles established

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  • For res judicata to suffice, all conjunctive elements must be satisfied: same matter directly and substantially in issue, same parties or parties under whom they claim, litigating under the same title, a competent court, and a final determination
  • A party alleging res judicata bears the burden of demonstrating its elements, including by producing the pleadings and decisions in the former suits
  • A preliminary objection cannot be sustained on disputed facts or facts requiring ascertainment by evidence

Court orders

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  1. 1.The Notice of Preliminary Objection dated 2nd February 2024 is dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules 2010Order 53
  • Land Registration ActSections 18(2), 19, 26, 79(1), 80, 86(1)
  • Government Proceedings ActSections 12, 13A
  • Environment and Land Court ActSection 13(1) and (2)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (9)

  • Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Oraro Vs Mbaja
    (2005) eKLR
  • Nitin Properties Ltd Vs Singh Kalsi & Another
    (1995) eKLR
  • Independent Electoral & Boundaries Commission Vs Maina Kiai & 5 Others
    [2017] eKLR
  • Nicholas Njeru Vs the Attorney General and 8 Others
    Civil Appeal No. 110 of 2011 [2013] eKLR
  • Omondi Vs National Bank of Kenya Ltd and Others
    (2001) EA 177
  • Owners of the Motor Vessel "Lillian S" Vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    HCCC No. 53 of 2004
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Kivumbu (Suing as the Legal Representative of the Estate of Kivumbu Ndwiwa (Deceased)) v Mwau & 2 others (Environment & Land Case E008 of 2023) [2024] KEELC 7156 (KLR)", Case Analysis (2024). Makueni ELC Case (Unstated Number on the face of the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7156/eng@2024-10-30

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