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ELCAllowedOriginating Summons dated 7/11/2024 (arising from JR Misc. Appl. No. 4 of 2019)· [2025] KEELC 374 (KLR)

Rono (Suing as the Executrix of the Estate of the Late David Rono) v Almer Farm Limited (Environment and Land Miscellaneous Application E015 of 2024) [2025] KEELC 374 (KLR)

Environment and Land Court
5 February 2025
1,991 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 can convert a National Land Commission historical land injustice award into an enforceable court order, and raising res judicata without evidence fails.

What this practically means

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Executive summary

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The applicant, executrix of the estate of the late David Rono, filed an originating summons dated 7/11/2024 seeking adoption as an order of the court of an award made on 7/2/2019 and gazetted on 1/3/2019 by the National Land Commission's Historical Land Injustice Committee, which directed the excision of 400 acres from LR No. 8940 in Cherangany Sub-County and handover to the applicant. She further sought directions to the Land Registrar and County Surveyor to curve out the land, with police security during the exercise. Her attempts to take possession had been frustrated, and prior attempts by the respondent to quash the award - ELC Kitale JR Case No. 4 of 2019 (struck out 1/12/2020) and a Court of Appeal application (dismissed 9/7/2021) - failed. The respondent filed a preliminary objection dated 13/11/2024 arguing res judicata (citing a ruling of 1/10/2024 in Misc. ELC JR No. 4 of 2019), abuse of process, and that the court was functus officio, and further submitted the summons offended Order 37 of the Civil Procedure Rules. The court held that the res judicata objection required evidence per Oraro -vs- Mbaja, that the respondent had not demonstrated the adoption issue was previously heard and finally determined per the IEBC -vs- Maina Kiai tests, and that Section 20 of the ELC Act and Order 46 Rule 20 of the Civil Procedure Rules, read with Articles 159(2)(c) and (e), 50(1) and 59(2) of the Constitution, empower the court to adopt the award. The preliminary objection was dismissed and, the application being unopposed by any replying affidavit, it was allowed with costs.

Key legal issues

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01

Whether the originating summons was res judicata and an abuse of process

Holding

The preliminary objection failed; the respondent did not prove that adoption of the NLC award was litigated and finally determined in the former suits

Reasoning

The court applied the IEBC -vs- Maina Kiai tests for res judicata and found the respondent had merely alleged res judicata without swearing an affidavit or attaching pleadings, rulings and decrees showing the issue of adoption of the award was heard on merits and finally determined. Following Oraro -vs- Mbaja, the objection required evidence and could not succeed as a pure point of law.

p. 4
02

Whether the court can adopt the NLC Historical Land Injustice Committee award as an order of the court

Holding

Yes; the court has power under Section 20 of the ELC Act and Order 46 Rule 20 of the Civil Procedure Rules, and Articles 50(1) and 59(2) of the Constitution mandate promotion of ADR whose outcomes may be adopted as decrees

Reasoning

The court noted the NLC award of 7/2/2019 still stands, the respondent's attempts to quash it (JR Case No. 4 of 2019, struck out 1/12/2020, and Court of Appeal application dismissed 9/7/2021) failed, and the award has never been set aside. Adoption for execution purposes falls within the court's statutory powers and the constitutional mandate to promote alternative dispute resolution.

p. 4
03

Whether the originating summons offended Order 37 of the Civil Procedure Rules

Holding

No; the submission that it was defective in want of form lacks merit and the applicant is properly before the court

Reasoning

The court held Section 89 of the Civil Procedure Act allows commencement of cases by miscellaneous application, and Order 46 Rule 20 permits the court to adopt ADR outcomes. The invocation of Order 37 as a bar to the originating summons was therefore rejected.

p. 4

Legal principles established

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  • The ELC has power under Section 20 of the ELC Act and Order 46 Rule 20 of the Civil Procedure Rules to adopt an ADR outcome, including a National Land Commission award, as an order or decree of the court
  • A preliminary objection based on res judicata requires evidence and cannot succeed as a pure point of law
  • An unopposed application stands, where the facts deponed on oath are not refuted

Court orders

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  1. 1.The preliminary objection dated 13/11/2024 is dismissed
  2. 2.The originating summons dated 7/11/2024 seeking adoption of the National Land Commission award as an order of the court is allowed
  3. 3.The applicant is awarded costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(c) and (e)
  • Constitution of KenyaArticle 67(2)(e)
  • Constitution of KenyaArticles 50(1) and 59(2)
  • Environment and Land Court ActSection 20(1)
  • Environment and Land Court ActSection 15(3) and 15(3)(b)
  • Environment and Land Court ActSection 15(10)
  • National Land Commission ActSection 15(3)
  • National Land Commission ActSection 16(9)
  • National Police Service ActSections 24 and 51(b)
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 89
  • Civil Procedure RulesOrder 46 Rule 20
  • Civil Procedure RulesOrder 37

Cases cited (13)

  • Mukisa Biscuits Manufacturing Co. Ltd -vs.- West End Distributors
    [1969] EA 696
  • John Musakali -vs.- Speaker of County Government of Bungoma & Others
    [2015] eKLR
  • Oraro -vs- Mbaja
    [2005] KLR 141
  • Njangu -vs.- Wambugu & Another
    NRB HCCC No. 2340 of 1991
  • Siri Ram Kaura -vs- M.J.E. Morgan
    [1961] EA 462
  • The Chief Land Registrar and Others -vs- Nathan Tirop Koech & Others
    [2018] eKLR
  • Delmonte (K) Ltd -vs.- NLC & Another Kandara Resident Association & Others (IP)
    Petition 3 of 2020 [2022] KEELC 2243 (KLR)
  • Republic -vs.- NLC & Others, Tuei & Others (IP), James Finlay (K) Ltd and Others
    JD No. 3 of 2020 ELC JR Case No. 4 and 5 (Consolidated) [2023] KEELC 16903 (KLR)
  • In the matter of the National Land Commission Advisory Opinion Ref. No. 2 of 2014
    [2015] eKLR
  • AIC (Maunga) & Others -vs.- Mboye & Another
    ELC Appeal No. 3 of 2024 [2024] KEELC 6155 (KLR)
  • Kitui & Another (Suing on behalf of the estate of Stephen Kitui) -vs.- Kitui & Another
    ELC Land Case No. 68 of 2021 [2023] KEELC 78 (KLR)
  • IEBC -vs.- Maina Kiai & Others
    [2017] eKLR
  • Uhuru Highway Development Ltd -vs.- Central Bank of Kenya & Others
    null
Jurisdiction invoked
Article 159(2)(c) and (e) of the Constitution as read with Section 20 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, "Rono (Suing as the Executrix of the Estate of the Late David Rono) v Almer Farm Limited (Environment and Land Miscellaneous Application E015 of 2024) [2025] KEELC 374 (KLR)", Case Analysis (2025). Originating Summons dated 7/11/2024 (arising from JR Misc. Appl. No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/374/eng@2025-02-05

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