Sawe (Suing as legal representative of Daniel Kibwalei Sawe) v Keiyo Division Land Dispute Tribunal & another (Judicial Review Cause E002 of 2022) [2023] KEELC 949 (KLR)
The bottom line
#A Kenyan landowner lost his 2022 land case because he failed to use the proper legal channels to challenge a 2006 Tribunal decision years earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata the previous Tribunal and magistrate court proceedings
Res judicata does not arise because a question of law remains unresolved - whether the Tribunal had jurisdiction over registered land disputes - so there was no conclusive decision
The court held that since the question of the Tribunal's jurisdiction over registered land disputes was never conclusively determined, the doctrine could not be sustained. The court noted numerous decisions of the ELC and Court of Appeal that the Tribunal had no jurisdiction over registered land disputes, but declined to found the objection on res judicata.
Whether a Land Disputes Tribunal award can be challenged by way of a fresh suit rather than appeal or judicial review
No - where a statutory procedure for redress exists it must be strictly followed; the plaintiff, having failed to prosecute his appeal and judicial review, could not challenge the award by a fresh suit
The court confronted two conflicting decisions of concurrent jurisdiction (Jepkemoi Ngeyoni and Jamin Kiombe Lidodo) and elected to follow the Karume principle that statutory remedies must be strictly followed. Allowing a fresh suit years after the award would open the floodgates to stale claims. The plaintiff's unprosecuted appeal and other suits, and his inordinate delay, estopped him from challenging the award afresh.
Whether the suit is time barred under section 7 of the Limitation of Actions Act
The preliminary objection on limitation failed because determination of possession and when it changed requires evidence
Both parties claimed to be in occupation of the suit land and the 2nd defendant acknowledged the decree had not been executed. The court held that who is in occupation and from when must be established by evidence before limitation under section 7 can be determined; a preliminary objection cannot be sustained on facts requiring evidence. However, the court noted inordinate unexplained delay in bringing the suit.
Whether the suit is frivolous, vexatious and an abuse of the process of the court
Yes - the suit was filed long after the cause of action arose and after a series of unprosecuted cases on the same subject matter; the preliminary objection was sustained on this ground
The court found the plaintiff's conduct - filing multiplicity of suits concerning the same subject matter and failing to prosecute them, resulting in dismissals for want of prosecution - to be vexatious. The suit also offended the requirement to exhaust available remedies. The court declined to allow the plaintiff a second bite of the cherry after unsuccessful judicial review proceedings.
Legal principles established
#- Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
- A suit dismissed for want of prosecution should be pursued through reinstatement mechanisms, not by filing a fresh suit
Court orders
#- 1.The preliminary objection dated July 26, 2022 is sustained on the ground that the suit offends the requirement of exhaustion of available remedies and is vexatious and an abuse of the process of the court
- 2.The suit instituted vide the plaint dated May 17, 2022 and filed on May 19, 2022 is struck out
- 3.Costs of the suit awarded to the 2nd defendant
- Jurisdiction invoked
- Jurisdiction of the Environment and Land Court to hear and determine a suit concerning registered land (no specific constitutional/statutory provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sawe (Suing as legal representative of Daniel Kibwalei Sawe) v Keiyo Division Land Dispute Tribunal & another (Judicial Review Cause E002 of 2022) [2023] KEELC 949 (KLR)", Case Analysis (2023). Iten ELC Case (Plaint dated May 17, 2022; filed May 19, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/949/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.