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ELCDismissedNot stated in judgment

Milka Wambui Ndaba & another v Josphat Kinyanjui Mukonyo & 2 others [2018] KEELC 2537 (KLR)

Environment and Land Court (originally filed at the High Court, Embu)
7 May 2018
2,355 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a family land dispute because the plaintiffs challenged a tribunal award through the wrong legal route and had already abandoned their appeal.

What this practically means

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Executive summary

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The plaintiffs sued for a permanent injunction restraining the defendants from rice holding No. 1643 Mwea Irrigation Scheme and a declaration that they are its lawful licensees. Their claim was that the 1st and 2nd defendants fraudulently misled a Land Disputes Tribunal at Wanguru, whose award was adopted in Wanguru Arbitration Case No. 7 of 2000 and led to the sub-division of the holding into three portions. The defendants pleaded res judicata, relying on the Tribunal award, the dismissal of the plaintiffs' appeal to the Provincial Land Disputes Appeals Committee, and the withdrawal by the plaintiffs of Nyeri High Court Civil Appeal No. 149 of 2003 in 2007. The court first addressed res judicata as a jurisdictional issue. Applying Section 7 of the Civil Procedure Act, it held that res judicata requires determination by a competent court. The Tribunal, exercising jurisdiction under Section 3(1) of the repealed Land Disputes Tribunal Act, was confined to boundary disputes, claims to occupy or work land, and trespass, and had no power to determine ownership of a rice holding belonging to the National Irrigation Board; nor were the defendants dependants of the licensee under the Irrigation Regulations. The Tribunal exceeded its jurisdiction, so its award could not found a res judicata plea. However, on the merits the suit failed: the plaint effectively challenged the Tribunal's award, a course properly pursued by appeal (abandoned in 2007) or judicial review; fraud was pleaded without particulars; and holding No. 1643 no longer exists, having been partitioned in 2009 with all parties holding licences to their portions. The suit was dismissed with each party bearing their own costs as they are family.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit is barred by res judicata in view of the Wanguru Land Disputes Tribunal award adopted in Wanguru Arbitration Case No. 7 of 2000, the Appeals Committee decision, and the withdrawn Nyeri High Court Civil Appeal No. 149 of 2003
  2. 2.Whether the Land Disputes Tribunal had jurisdiction to sub-divide rice holding No. 1643 Mwea Irrigation Scheme
  3. 3.Whether the plaintiffs are entitled to a permanent injunction and a declaration that they are the lawful licensees of rice holding No. 1643

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is not res judicata because the Tribunal that determined the earlier dispute lacked jurisdiction over ownership of a rice holding at the Mwea Irrigation Scheme

Reasoning

Res judicata under Section 7 of the Civil Procedure Act requires a former suit heard and finally determined by a competent court. The Tribunal's jurisdiction under Section 3(1) of the repealed Land Disputes Tribunal Act covered boundaries, occupation/working of land and trespass, not ownership. The licencee of holding No. 1643 was the 2nd plaintiff under guardianship, the land belongs to the National Irrigation Board, and the defendants were not dependants under the Irrigation Regulations. The Tribunal therefore exceeded jurisdiction and its award cannot found a res judicata plea.

p. 3
02

Whether the plaintiffs are entitled to the injunction and declaration sought

Holding

The remedies sought cannot issue because the plaintiffs are effectively challenging the Tribunal award through the wrong route and abandoned their appeal, and the holding has been partitioned

Reasoning

Going by the reliefs in the plaint, the suit is not framed to set aside the Tribunal award; a challenge lay by appeal (which the plaintiffs withdrew) or judicial review. Fraud was pleaded without particulars. The rice holding No. 1643 no longer exists, having been partitioned in 2009 with licences issued to all parties, so the defendants' presence on their portions cannot be described as illegal absent a declaration that the order is unlawful.

p. 3

Legal principles established

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  • For res judicata to apply, the previous suit must have been heard and determined by a court of competent jurisdiction; a judgment of a court without jurisdiction cannot operate as res judicata
  • The Land Disputes Tribunal under the repealed Land Disputes Tribunal Act had no jurisdiction to determine disputes concerning ownership of land in the Mwea Irrigation Settlement Scheme, which belongs to the National Irrigation Board
  • A decision of a Land Disputes Tribunal can be challenged through a normal suit or a declaratory suit even after adoption as a judgment of the Court

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Each party to meet their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Original civil suit; defence of res judicata under Section 7 of the Civil Procedure Act considered as a jurisdictional bar

Relief refused

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Permanent injunction restraining the defendants from entering or interfering with rice holding No. 1643

The holding no longer exists, having been partitioned in 2009 with all parties given their respective portions and licences, and the Tribunal order has not been declared unlawful

p. 3

Declaration that the plaintiffs are the lawful licensees and tenants of rice holding No. 1643

The claim effectively challenged the Tribunal's award through the wrong route, and the plaintiffs abandoned their appeal against that award

p. 3

Costs

Each party to meet their own costs ("As the parties are family, each shall meet their own costs.")

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court
p. 2Res judicata - statutory ingredients
A judgment delivered by a Court not competent to deliver it cannot operate as res-judicata since such judgment is not of any effect.
p. 2Res judicata - competency of former court
My finding therefore is that the Tribunal had no jurisdiction to make the orders that it did with respect to the rice holding No. 1643 because it was not competent to do so which is a requirement for res-judicata to apply.
p. 3Tribunal jurisdiction and res judicata
The up-shot of the above is that the plaintiffs' suit is dismissed. As the parties are family, each shall meet their own costs.
p. 3Final orders and costs

Issues in the judgment

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minor

The judgment's heading/decision is signed by B.N. Olao J on 7th May 2018, but the closing endorsement states it was 'Ruling read and Signed on 26th June 2018' by S.N. Mukunya J

minor

The case number of this suit is not stated anywhere in the judgment

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, "Milka Wambui Ndaba & another v Josphat Kinyanjui Mukonyo & 2 others [2018] KEELC 2537 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2537/eng@2018-06-26

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