Joseph Kashau Ololkuo & 6 others v Ngati Farmers Co-operative Society Ltd [2011] KECA 38 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a community land claim because the same dispute had already been litigated and the group never properly notified everyone it claimed to represent.
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 learned Judge erred in law in finding that the suit was res judicata
- 2.Whether the learned Judge erred in fact in finding that the claim over the suit property by adverse possession was not proved
- 3.Whether the learned Judge erred in fact and in law in her conclusion that Nakuru High Court Civil Case No. 89 of 1996 was a representative action
Key legal issues
#Res judicata
The appellants' suit was res judicata because the same property and substantially the same communal claims were litigated in Nakuru HCCC No. 89 of 1996.
The three parcels of land in this suit were the same ones as in the earlier suit. The evidence, including the arbitration panel record and the testimony of Ledidi and Nakoru, showed the earlier defendants pursued a communal claim on behalf of thousands of Maasai occupants, and prayer (2) of their counterclaim claimed the whole of the three parcels. The present appellants were pursuing the same cause of action over the same property, so their claim was res judicata notwithstanding differences in the parties named.
Representative action procedure under Order 1 rule 8
The appellants' suit was incompetent for non-compliance with Order 1 rules 8(2) and (3) of the Civil Procedure Rules, requiring notice to all persons represented; a signed list of those represented was insufficient.
The rules required notice of the suit to be given to all represented persons by personal service or public advertisement, and any represented person could apply to be joined. The respondents attached a list of about 347 signatories, but the court found no note in the trial record of compliance with the notice requirement. The same defect existed in the earlier suit. On that ground alone the suit should have been dismissed as incompetent, though the point had not been raised in the memorandum of appeal.
Proof of adverse possession
The appellants failed to prove continuous and uninterrupted adverse possession of the suit land.
The trial judge found the appellants' evidence was in general terms and that they had not established continuous, uninterrupted possession. The appellants had not identified the specific parts of the suit property they claimed; they occupied only a portion already identified and awarded to the Maasai by Rimita J. in the earlier suit, so their claim had to be assumed to be for the whole property, which the evidence did not support.
Legal principles established
#- A representative action under Order 1 rule 8 requires notice to all persons represented, by personal service or public advertisement; compliance with the notice requirement is mandatory and failure to comply renders the suit incompetent.
- It is essential in a representative suit to issue notice to those represented so they may decide whether or not to apply to be joined as parties; such a notice may also bar a beneficiary of the suit from bringing a fresh suit on the same terms.
- Where defendants in a prior suit prosecute a communal claim over the whole property, a later suit by members of the same community claiming the same property is res judicata even if the prior suit was not formally titled a representative action.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent, Ngati Co-Operative Society Ltd
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 267 of 2005 (O.S.)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's appellate jurisdiction (Appeal from the judgment and decree of the High Court of Kenya at Nakuru)
Relief refused
#The appellants' claim to the whole of parcels Narok/Maiella Estate/2662, 1380 and 8398/2 by adverse possession
The suit was res judicata and adverse possession was not proved on the evidence
Costs
The appeal is dismissed with costs to the respondent, Ngati Co-Operative Society Ltd.
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.
The appellants in the appeal before us are not pursuing a different cause of action. They are claiming the same property and that does render their claim herein res judicata
That suit and more specially, the counterclaim, was not titled as being a representative action. However, the manner in which the defendants therein prosecuted it was for all intents and purposes a representative action.
We have no basis for interfering with Koome J.'s decision. Accordingly, we agree with Mr. Kahiga for the respondent that the appeal has no merit both on the basis that the appellants' suit is res judicata, and also because on the evidence before the High Court, the appellants did not prove adverse possession. The appeal is accordingly dismissed with costs to the respondent, Ngati Co-Operative Society Ltd.
Issues in the judgment
#The judgment refers to parcel '9398/2' in the arbitration panel excerpt while the suit property elsewhere is '8398/2', an apparent typographical inconsistency in the judgment.
The judgment refers to the respondent's counsel's submissions as those of Mr. Kahiga while earlier Mr. Konosi is described as counsel for the defendants/appellants' side; the label for Mr. Kahiga's client is not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kashau Ololkuo & 6 others v Ngati Farmers Co-operative Society Ltd [2011] KECA 38 (KLR)", Case Analysis (2011). Civil Appeal No. 330 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/38/eng@2011-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.