Otiende (Suing on his behalf and as the Legal Represetative and Administrator of the Esttae of Manasseh Nyajeri Otiende - Deceased) & another v Land Registrar, Kakamega County & 3 others (Constitutional Petition E002 of 2024) [2025] KEELC 4612 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed landowners' bid to stop a sale, ruling the boundary dispute had already been decided and could not be revived as a constitutional claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners met the Giella v Cassman Brown threshold for a temporary injunction
They did not; no prima facie case with any real chance of success was demonstrated.
The dispute over the boundaries and acreages of parcels Kisa/Doho/184 and Kisa/Doho/185 had already been litigated before the Khwisero Land Disputes Tribunal, the Provincial Land Appeals Tribunal and the High Court. Raising the same complaint in a fresh constitutional petition was res judicata and did not disclose a prima facie case. Further, boundary determinations under sections 18 and 19 of the Land Registration Act fall outside the court's jurisdiction.
Whether the court has jurisdiction over a boundary dispute re-packaged as a constitutional petition under Article 40
No; the dispute is purely a boundary dispute under sections 18 and 19 of the Land Registration Act, outside the court's jurisdiction.
Invoking Article 40 does not convert an ordinary boundary dispute into a constitutional question. Since previous proceedings on the same boundaries existed, the court had no jurisdiction to adjudicate the boundary dispute afresh, and any grievance with the prior decisions must be pursued through legal channels of appeal or enforcement.
Legal principles established
#- A court is barred from trying a suit or issue directly and substantially in issue in a former suit adjudicated by a competent court.
- A boundary dispute does not become a constitutional question merely by invoking the right to property under Article 40.
- Where the complaint is that a party contravenes decisions of a tribunal or another court, redress lies in the forum that made or is to enforce the decision, not a fresh suit.
Court orders
#- 1.The application dated 15th August 2024 is dismissed
- 2.Costs to the respondents
- Jurisdiction invoked
- Article 40 of the Constitution invoked by petitioners; court's jurisdiction considered under Order 40 Rule 1 of the Civil Procedure Rules, sections 18 and 19 of the Land Registration Act and section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otiende (Suing on his behalf and as the Legal Represetative and Administrator of the Esttae of Manasseh Nyajeri Otiende - Deceased) & another v Land Registrar, Kakamega County & 3 others (Constitutional Petition E002 of 2024) [2025] KEELC 4612 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 15th August, 2024 in a constitutional petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4612/eng@2025-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.