Kaikai & another v Nkolia & 6 others (Environment & Land Petition E004 of 2024) [2024] KEELC 7176 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi of the Applicants to bring the striking-out application
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.
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.
Whether the Petition was res judicata Kisii ELC Case No. 249 of 2013
Yes - all five ingredients of res judicata under Section 7 of the Civil Procedure Act were satisfied.
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.
Whether the Petition was sub judice the pending Court of Appeal appeal
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.
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.
Whether the Petition was an abuse of court process
Yes - the Petition was forum shopping and an abuse of process.
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.
Legal principles established
#- 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
#- 1.The notice of motion application dated 3rd July 2024 is merited
- 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.The petitioners shall meet the costs of the respondents relating to the substantive petition as well as the present application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.