Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedConsolidated Constitutional Petitions (Narok ELC) — application dated 27 August 2019· [2020] KEELC 3938 (KLR)

Joseph Kimeto Ole Mapelu & 12 others v Cabinet Secretary, Ministry of Lands, Housing And Urban Development & 10 others [2020] KEELC 3938 (KLR)

Environment and Land Court
21 January 2020
MSMunyao SilaMKMohamed KullowGOGeorge M.A On'gondo
1,493 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a second request for eviction protection because an identical request had already been decided — you cannot ask the same court twice.

What this practically means

#

Executive summary

#
This ruling of a three-judge bench of the Environment and Land Court at Nakuru (Munyao Sila, Mohamed Kullow and George M.A On'gondo JJ) determines an application dated 27 August 2019 by the petitioners and respondents in the cross-petition seeking conservatory and injunctive orders to restrain the respondents from evicting them or destroying their properties in parcels constituting the former Enakishomi, Enkasoni, Sisiyian, Enosokon and Reiyo Group Ranches. The suit consolidates two constitutional petitions: one by Joseph Ole Mapelu and 12 Others claiming titles to the suit parcels and infringement of their rights through forced eviction, and another by Prof. Paul Kiprono Chepkwony, Governor of Kericho County, in his private capacity on behalf of former group ranch members. The State, in an amended cross-petition, asserted that the petitioners' titles were fraudulent, having been unlawfully carved out of the Mau Forest Complex, and sought cancellation of the titles. An earlier application for conservatory orders filed alongside the petitions was dismissed by Kullow J on 17 September 2018. The respondents opposed the fresh application chiefly as res judicata. The court agreed, holding that res judicata under Section 7 of the Civil Procedure Act applies to constitutional petitions and to rulings on applications, as affirmed by the Supreme Court in George Kihara Mbiyu. Since the land, persons and orders sought were identical, and the amendments changed nothing of substance, the application was res judicata and was dismissed with costs, the court declining to consider the merits.

Key legal issues

#
01

Whether res judicata bars a fresh conservatory/injunction application after an earlier identical application was dismissed

Holding

The application is res judicata; the parties, land and orders sought are the same as in the applications determined by Kullow J on 17 September 2018

Reasoning

Section 7 of the Civil Procedure Act anchors res judicata, and the principle extends to constitutional petitions and to rulings on applications, not only judgments after full hearings. The Supreme Court in George Kihara Mbiyu affirmed this. Here the land is the same, the persons affected are the same, and the orders sought are the same as in the earlier applications. Amendment of the petition added nothing of substance, and the earlier application would have benefited all affected persons including the deponent. Rehearing would be akin to sitting on appeal over Kullow J's decision, which the three-judge bench lacks jurisdiction to do.

p. 2

Legal principles established

#
  • The doctrine of res judicata applies equally to decisions on applications as it does to final decisions on a matter, including matters commenced by constitutional petition
  • A party cannot file a fresh application for the same orders where a similar application has already been heard and determined, even after amendment of the petition, where nothing of substance has changed

Court orders

#
  1. 1.The application dated 27 August 2019 is dismissed with costs
Jurisdiction invoked
Article 22 of the Constitution; Rule 23(1)(2)(3) and Rule 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Kimeto Ole Mapelu & 12 others v Cabinet Secretary, Ministry of Lands, Housing And Urban Development & 10 others [2020] KEELC 3938 (KLR)", Case Analysis (2020). Consolidated Constitutional Petitions (Narok ELC) — application dated 27 August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3938/eng@2020-01-21

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