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ELCStruck OutPetition dated May 18, 2023 (Machakos ELC Petition)· [2024] KEELC 7485 (KLR)

Odero v National Land Commission & 4 others (Environment & Land Petition E005 of 2023) [2024] KEELC 7485 (KLR)

Environment and Land Court of Kenya
13 November 2024
3,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land petition as res judicata, confirming you cannot relitigate a settled dispute by dressing it up as a constitutional case.

What this practically means

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Executive summary

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The 5th Respondent, Diesel Care Limited through its Managing Director Joseph Karuoro Claudio, moved the Court by Notice of Motion dated July 18, 2023 under Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 7 and 3A of the Civil Procedure Act, seeking striking out of the Petitioner's constitutional Petition dated May 18, 2023 as res judicata and an abuse of process. The 5th Respondent argued that ownership of LR No. 1504/11 (I.R. 85400) had been conclusively determined in Machakos ELC Case No. 166 of 2011 (Diesel Care Limited v Megvel Cartons Limited & 2 Others), affirmed by the Court of Appeal in Nairobi Civil Appeal No. 70 of 2018 and by the Supreme Court in Petition of Appeal No. E003 of 2023, and that titles held by Megvel Cartons over LR No. 25064 (I.R. 85088) had been declared forgeries and null and void. The Petitioner opposed, contending he was not a party to ELC 166 of 2011, that he was holder of the first title, that his surrender of LR 1504/11 was for change of user only, and that the allotment to Maji Safi Agencies amounted to unconstitutional expropriation entitling him to compensation. The Court framed a single issue: whether the Petition should be struck out as res judicata. Applying the Supreme Court's five-part test in John Florence Maritime and the 'one bite at the cherry' principle in Kenya Commercial Bank v Muiri Coffee Estate, the Court found the Petitioner had testified as DW2 in ELC 166 of 2011, had sold the land to Megvel Cartons, and that both suits were litigated under the same title before competent courts with final decisions. The Petition was struck out as res judicata, with costs to the 5th Respondent.

Key legal issues

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01

Whether the Petition was res judicata in light of Machakos ELC Case No. 166 of 2011 and its appellate affirmance

Holding

The Petition is res judicata; the Petitioner, who sold the suit land to Megvel Cartons Limited and testified in ELC 166 of 2011, was litigating under the same title, and the ownership of the suit land was conclusively determined by competent courts.

Reasoning

The court applied the Supreme Court's five-part test in John Florence Maritime. The fulcrum of both disputes is ownership of the same land. The Petitioner recorded a witness statement and testified as DW2 in ELC 166 of 2011 concerning his title and sale to Megvel Cartons Limited. Having disposed of the land, he cannot claim proprietary rights to re-litigate its title. The ELC judgment was affirmed by the Court of Appeal and the Supreme Court, satisfying finality and competent jurisdiction.

p. 8
02

Whether the nullified title of Megvel Cartons Limited could confer fresh rights on the Petitioner

Holding

The nullified title cannot confer fresh rights on the Petitioner in respect of LR No. 1504/11.

Reasoning

Since the title documents held by Megvel Cartons Limited over LR No. 25064 (I.R. 85088) were declared null and void by competent courts, the Petitioner cannot leverage that invalidated title to found a new claim to the original parcel, LR No. 1504/11, now registered in the 5th Respondent's name. Framing the claim as a constitutional petition did not escape the doctrine of res judicata; it was merely a cosmetic facelift to give the suit a different face.

p. 8

Legal principles established

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  • Res judicata is tested against five heads: identity of matter in issue, sameness of parties, sameness of title/claim, concurrence of jurisdiction, and finality of the previous decision.
  • A party claiming under the same title as a previous litigant cannot re-litigate the same issue by framing it as a fresh constitutional petition.

Court orders

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  1. 1.The Notice of Motion Application dated July 18, 2023 is allowed
  2. 2.The Petition dated May 18, 2023 is struck out for being res judicata
  3. 3.Costs awarded to the 5th Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticles 10, 20, 25(c), 47(1), 48, 50(1), 159(1)
  • Land Registration ActSections 26 and 80
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3, 4(1), 8 and 10

Cases cited (4)

  • John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR)
    [2021] KESC 39 (KLR) (Civ)
  • Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another
    [2016] eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    (2010) eKLR
  • Diesel Care Limited v Megvel Cartons Limited & 2 Others (Machakos ELC Case No. 166 of 2011)
Jurisdiction invoked
Sections 7 and 3A of the Civil Procedure Act and Order 2 Rule 15, Order 51 Rule 1 of the Civil Procedure Rules; constitutional petition 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, "Odero v National Land Commission & 4 others (Environment & Land Petition E005 of 2023) [2024] KEELC 7485 (KLR)", Case Analysis (2024). Petition dated May 18, 2023 (Machakos ELC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7485/eng@2024-11-13

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