Automated Summary
Key Facts
The court dismissed Fresh N Nice Limited's petition seeking declarations of land ownership and injunctive relief. The petitioner failed to prove the legality of its certificate of title for Land Reference 7918/735 in Isiolo, as the land was previously gazetted as prison land and not available for allocation. The petition was also deemed an abuse of process under the doctrine of res sub judice, as the Ethics and Anti-Corruption Commission had already filed a civil suit (ELC E004 of 2021) to invalidate the petitioner's title. The court emphasized that unprocedural title acquisition and pending litigation barred the petition.
Issues
- Whether the petition constitutes an abuse of the due process of the court under the doctrine of res sub judice, given that a related civil suit (ELC E004 of 2021) was already pending to challenge the petitioner's title.
- Whether the petitioner has proven that it is the lawful and registered proprietor of the suit property and thus entitled to constitutional protection under Article 40(3) of the Constitution, 2010.
Holdings
- The court refrained from addressing the revocation of the petitioner’s certificate of title, as that issue is sub judice in the pending civil suit (ELC E004 of 2021). The court limited its ruling to the procedural and evidentiary deficiencies in the current petition.
- The court dismissed the petition because the petitioner failed to prove the legitimacy of its title to the suit property. The petitioner did not provide transactional documents to establish the root of the certificate of title, which was procured without following legal procedures. The court emphasized that the certificate of title alone is insufficient to claim lawful ownership if obtained unprocedurally or illegally.
- The petition was deemed an abuse of the court process under the doctrine of res sub judice. The petitioner was aware of an ongoing civil suit (ELC E004 of 2021) challenging its title but filed the constitutional petition anyway, aiming to circumvent the existing legal proceedings. The court ruled this as an attempt to derail the prior suit and procure an unconstitutional judgment in rem.
Remedies
- Costs of the Petition are awarded to the 1st respondent and the Interested Party only.
- The court does not address revocation as the issue is sub judice ELC E004 of 2021.
- Costs shall be agreed upon or taxed in the conventional manner if not agreed.
- The Petition is hereby dismissed.
Legal Principles
- The court applied the doctrine of res sub judice, holding that the petition was barred because the same issues were already pending in a civil suit (Isiolo ELC E004 of 2021) filed by the Ethics and Anti-Corruption Commission to challenge the petitioner's title. The filing of the petition was deemed an abuse of the court process to circumvent ongoing proceedings.
- The court emphasized that the doctrine of indefeasibility of title does not protect titles obtained through illegal or fraudulent means. The petitioner failed to prove the legitimacy of its certificate of title, which was issued without proper procedural compliance or evidence of lawful allocation.
Precedent Name
- Kipsirgoi Investment Limited v Kenya Anti-Corruption Commission
- Mas Construction Limited v Sheikh & 6 others
- Albert Cha Urembo Mumba v Morris Munyao
- Chemey Investment Limited v Attorney General
- Ethics and Anti-Corruption Commission v Eunice N. Mogalia
- Dina Management Limited v County Government of Mombasa
- Wambui v Mwangi
- Funzi Island Development Ltd v County Council of Kwale
- Benja Properties Limited v Syedna MohammedBurhannudin Sahed
- Joel Kenduiywo v District Criminal Investigation Officer Nandi
- Kenya National Commission on Human Rights v Attorney General
- Attorney General v Ndi & 79 others
- Neptune Credit Management Limited v Chief Magistrates Court
Cited Statute
- Evidence Act, Chapter 80, Laws of Kenya
- Civil Procedure Act, Chapter 21, Laws of Kenya
- Government Lands Act, Chapter 280, Laws of Kenya
- Physical Planning Act, Chapter 286, Laws of Kenya
Judge Name
Oguttu Mboya
Passage Text
- The court held that 'the instant petition constitutes and amounts to abuse of the due process of the court on the basis of premeditated scheme to defeat the orders sought vide ELC E004 of 2021; as well as on the basis of the doctrine of res sub judice.'
- The court found that the Petitioner did not discharge the onus to prove the certificate of title was lawfully acquired, stating 'the certificate of title was procured in vacuum.'
- The judgment concluded that 'the Petition be and is hereby Dismissed' with costs awarded to the 1st respondent and interested party.