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ELCAllowedNot stated in judgment (Petition dated 15.04.2024; Notice of Motion dated 03.07.2024)· [2024] KEELC 7176 (KLR)

Kaikai & another v Nkolia & 6 others (Environment & Land Petition E004 of 2024) [2024] KEELC 7176 (KLR)

Environment and Land Court
15 October 2024
5,294 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land petition because it re-fought issues already decided and now on appeal.

What this practically means

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Executive summary

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The 1st to 3rd Respondents in an undated constitutional Petition concerning the sub-division of LR.No.transmara/Olomismis/1 (owned by the dissolved Olomismis Group Ranch) filed a Notice of Motion dated 03.07.2024 seeking to strike out the Petition dated 15.04.2024 as res judicata, sub judice, scandalous, frivolous and an abuse of court process. They relied on Kisii ELC Case No. 249 of 2013, in which identical issues were litigated and a judgment delivered on 05.10.2018 validating the sub-division, and on the pending Kisumu Court of Appeal Civil Appeal No. 27 of 2021 against that judgment. The Petitioners opposed, contending the Applicants lacked capacity as they were not lawful officials of the Group Ranch. The court framed six issues and first held that parties sued in a petition possess the right to be heard and the capacity to apply, under Article 50 of the Constitution. It then methodically applied the five ingredients of res judicata under Section 7 of the Civil Procedure Act, finding identical issues, substantially similar parties, the same title, a final determination, and a competent court, and held the Petition res judicata. It further found the Petition sub judice the pending appeal, stripping this Court of jurisdiction over the same issues, and concluded the Petition was forum shopping and an abuse of process. The application dated 03.07.2024 was allowed, the Petition struck out, and the Petitioners ordered to pay the Applicants' costs for both the petition and the application. Judgment delivered virtually in Kilgoris on 15 October 2024 by Emmanuel M. Washe J.

Key legal issues

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01

Locus standi of the Applicants to bring the striking-out application

Holding

The Applicants, though no longer (or disputed) office bearers of the Group Ranch, were sued personally in the Petition and thus had the right to be heard and to apply.

Reasoning

The Respondents themselves sued the Applicants in the Petition, thereby admitting they were necessary parties. Every party has the right to a fair hearing under Article 50 of the Constitution, which includes the opportunity to defend themselves and challenge the Petition by application. The Respondents' capacity objection was self-defeating because it implied no violation was caused by the Applicants at all.

p. 6
02

Whether the Petition was res judicata Kisii ELC Case No. 249 of 2013

Holding

Yes - all five ingredients of res judicata under Section 7 of the Civil Procedure Act were satisfied.

Reasoning

The issues (legality of office bearers, manner of sub-division of LR.No.transmara/Olomismis/1, cancellation of sub-divisions), the parties (substantively similar, with Petitioners claiming through the same members), the title litigated, the final determination of 05.10.2018 and the competence of the ELC were all established. The 2018 judgment had validated the sub-division and directed issuance of titles.

p. 11
03

Whether the Petition was sub judice the pending Court of Appeal appeal

Holding

Yes - the same issues are before the Court of Appeal in Kisumu Civil Appeal No. 27 of 2021, so the ELC had no jurisdiction over them.

Reasoning

The existence of the appeal against the 05.10.2018 judgment was undisputed. The court took judicial notice that the issues litigated in Kisii ELC Case No. 249 of 2013 and raised again in the Petition fall within the Court of Appeal's jurisdiction, which had yet to determine them. This court therefore could not hear and determine the same issues.

p. 11
04

Whether the Petition was an abuse of court process

Holding

Yes - the Petition was forum shopping and an abuse of process.

Reasoning

The issues, parties and subject matter were identical to the earlier suit; the only changes were the persons claiming to represent the members and a reduced number of Respondents. Filing a constitutional petition over the same property instead of joining the pending Court of Appeal appeal amounted to forum shopping to cause confusion or conflicting decisions.

p. 12

Legal principles established

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  • A party joined as a necessary party in proceedings retains the right to be heard, including the capacity to file applications in those proceedings.
  • Re-litigation in a constitutional petition of issues already determined in a prior land suit, while an appeal thereon is pending, is res judicata, sub judice and an abuse of court process.

Court orders

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  1. 1.The notice of motion application dated 3rd July 2024 is merited
  2. 2.The petition dated 15.04.2024 be and is hereby struck out for being res-judicata to Kisii ELC Case No. 249 of 2013 and sub-judice Court of Appeal Civil Appeal No. 27 of 2021
  3. 3.The petitioners shall meet the costs of the respondents relating to the substantive petition as well as the present application

Authorities

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Legislation

  • Civil Procedure Act Cap 21 Laws of KenyaSection 7
  • Constitution of Kenya, 2010Article 50

Cases cited (6)

  • Independent Electoral & Boundaries Commission-versus-Maina Kiai & 5 Others
    (2017) eKLR
  • Lotta-versus-Tanaki
    (2003) 2 EA 556
  • ET-Versus-Attorney General & Another
    (2012) eKLR
  • Omondi Vs National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu Vs Wambugu and another Nairobi HCCC No.2340 of 1991
    (unreported)
  • Christopher Kenyariri-versus-Salama Beach
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land matters; Article 50 of the Constitution of Kenya, 2010 (right to fair hearing) invoked on capacity

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, "Kaikai & another v Nkolia & 6 others (Environment & Land Petition E004 of 2024) [2024] KEELC 7176 (KLR)", Case Analysis (2024). Not stated in judgment (Petition dated 15.04.2024; Notice of Motion dated 03.07.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7176/eng@2024-10-15

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