Alluya & 4 others v Too
The bottom line
#The Court of Appeal dismissed five land occupants' claim, confirming that adverse possession claims fail without proof of long, peaceful, uninterrupted occupation.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The ELC suit was not res judicata the Kapsabet suit: four appellants were not parties to the earlier case, and as against Peris the earlier dispute was not determined on the merits.
Section 7 of the Civil Procedure Act requires that the matter have been heard and finally decided. The Kapsabet court declined jurisdiction over both parcels - one no longer existed after subdivision, and the other's owner was deceased with no administrator. The four other appellants were never parties to the earlier proceedings, so their claim could not be caught by the doctrine.
Pleading of fraud
The fraud/misrepresentation ground fails because no particulars of fraud were pleaded in the defence and counterclaim.
The court applied the settled rule that fraud must be specifically pleaded with particulars. Since the appellants' defence and counterclaim contained no such particulars, the trial judge's finding could not be impeached and the claim founded on fraud could not proceed.
Adverse possession
The appellants did not discharge the burden of proving adverse possession; occupation was interrupted by evictions and litigation.
The onus lay on the appellants. There was no concession that they had been in quiet and continuous occupation since 1972; Peris, the only defence witness, gave no evidence of the length or uninterrupted nature of her possession and did not rebut evidence that she was removed and returned. The respondent's concession of 1 acre related to parcel 2209, not the suit land.
Legal principles established
#- Res judicata under section 7 of the Civil Procedure Act requires that the matter in the former suit was heard and finally decided on the merits.
- Fraud and misrepresentation must be specifically pleaded with particulars set out.
- The party asserting adverse possession bears the onus of proving it.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- Eldoret E&L Case No. 41 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal from the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alluya & 4 others v Too", Case Analysis (2022). Civil Appeal 58 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1393/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.