[2007] KEHC 2289 (KLR)

[2007] KEHC 2289 (KLR)

The court found that the plaintiff's suit was not for adverse possession, as no such relief was sought, and thus the procedural objection on that ground failed. However, the court held that once the Land Disputes Tribunal's award was adopted as a judgment by the magistrate's court, it became a decree of the court, and any challenge to its legality had to be by appeal or judicial review within the statutory period. The plaintiff, having failed to pursue those avenues, could not seek to re-open the dispute through a declaratory suit. The court further held that an injunction to restrain execution of a court decree would, in effect, be an injunction against the court itself, which is not...

Citation
[2007] KEHC 2289 (KLR)
Parties
Plaintiff: Michael Bartenge; Defendant: Stephen Bartenge
Court
High Court
Court Station
High Court at Kitale
Jurisdiction
Kenya
Judgment Date
21 March 2007
Case Number
Civil Case 51 of 2005
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Outcome
suit struck out
Legal Topics
Res Judicata, Functus Officio, Land Disputes Tribunal Awards, Declaratory Relief, Injunctions, Execution of Decrees
Source Language
English
Land and Property Civil Procedure Res Judicata Functus Officio Land Disputes Tribunal Awards Declaratory Relief Injunctions Execution of Decrees

Case Brief

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Parties

Michael Bartenge

Plaintiff

Stephen Bartenge

Defendant

Procedural Posture

Civil Case / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the suit is improperly before the court as a declaratory suit instead of by originating summons for adverse possession.
  2. 2 Whether the issues raised are res judicata and the court is functus officio due to prior proceedings before the Land Disputes Tribunal and adoption by the magistrate's court.
  3. 3 Whether the application is an abuse of court process in view of section 8 of the Land Disputes Tribunals Act.

Ratio Decidendi

The court found that the plaintiff's suit was not for adverse possession, as no such relief was sought, and thus the procedural objection on that ground failed. However, the court held that once the Land Disputes Tribunal's award was adopted as a judgment by the magistrate's court, it became a decree of the court, and any challenge to its legality had to be by appeal or judicial review within the statutory period. The plaintiff, having failed to pursue those avenues, could not seek to re-open the dispute through a declaratory suit. The court further held that an injunction to restrain execution of a court decree would, in effect, be an injunction against the court itself, which is not...

Court Disposition

suit struck out

Orders

  • The preliminary objection is upheld.
  • The suit is struck out.