Attorney General v Ashon Sikolia Wanyonyi & another [2018] KEELC 3873 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a government land suit because the same dispute had already been decided, ruling the parcel never existed on the ground.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection that the suit is res judicata under Section 7 of the Civil Procedure Act, having regard to Bungoma HCCC 100 of 1998, Bungoma CMCC No. 110 of 2011 and Bungoma ELC Case 59 of 2014, is sustained
- 2.Whether parcel Webuye Municipality/141 exists on the ground and belongs to the plaintiff
Key legal issues
#Res judicata under Section 7 of the Civil Procedure Act
The suit is barred in its entirety because the same issues were previously canvassed between the parties in Bungoma HCCC 100 of 1998, Bungoma CMCC No. 110 of 2011 and Bungoma ELC Case 59 of 2014
The court traced the litigation history over the land originally adjudicated as Ndivisi/Muchi/1401, acquired from Reuben Wanyonyi and registered in the Bungoma County Council's name. Through prior suits the land was ordered returned to the defendants, and the eviction of the Webuye Jua Kali occupants pursuant to ELC 59 of 2014 was the very eviction now complained of. The same issues had therefore been canvassed, and parcel Webuye Municipality/141 was found to be a mistaken allocation inside Ndivisi/Muchi/6920.
Existence and ownership of parcel Webuye Municipality/141
The parcel does not exist on the ground and was allocated through a mistake, being located inside Ndivisi/Muchi/6920 which had been returned to the defendants
The court found that Webuye Jua Kali Association was allotted parcel Webuye Municipality/141 on 1/4/1998 by the County Council of Bungoma even after the Council had surrendered the land to the defendants pursuant to a court order of 23/11/2006 registering Ndivisi/Muchi/1401 in their names. The allocation was therefore made in error over land already restored to its owners.
Legal principles established
#- A suit whose subject matter has already been canvassed between the parties in prior suits is barred by res judicata under Section 7 of the Civil Procedure Act and is dismissed on a preliminary objection
Court orders
#- 1.The preliminary objection on res judicata is sustained
- 2.The suit is dismissed as res judicata
- 3.Costs of the suit awarded to the defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as the court seized of the land dispute); no specific provision cited in the judgment
Relief refused
#Declaration that Webuye Municipality/141 belongs to the plaintiff
The suit is res judicata; the parcel was found not to exist on the ground and to have been given through a mistake
Compensation for demolished properties, eviction and permanent injunction
The entire suit was dismissed on res judicata before trial on the merits
Costs
Costs to the defendants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Land parcel Webuye/Municipality/141 does not exist on the ground, it was given through a mistake.
The preliminary objection is sustained. This suit is resjudicatta. This suit is dismissed with costs to the defendants.
Issues in the judgment
#The judgment describes the plaintiff as the Attorney General claiming to be the registered owner, but elsewhere refers to the sons of Reuben Wanyonyi as 'the plaintiffs herein' and to parties inconsistently as plaintiffs/defendants across prior suits
Inconsistent parcel references: 'Ndivisi/Muchi/1401' and '401' used interchangeably
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Ashon Sikolia Wanyonyi & another [2018] KEELC 3873 (KLR)", Case Analysis (2018). Bungoma ELC Case (suit filed 18/8/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3873/eng@2018-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.