Twiga Estate Squarters Suing Through William Chege (Chairman) & 2 others v Mboi-Kamiti Farmers Company Limited [2015] KEELC 714 (KLR)
The bottom line
#A Kiambu squatter group lost its bid to revive a dismissed land claim because the court saw through its use of two different names for the same people.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for review under Order 45 Rule 1 were met
Not met - no new and important matter or evidence was discovered that was not available at the time the earlier application was determined
Muchelule J had before him the rulings and orders of the three previous suits. The plaintiffs, having been granted leave to file a further affidavit, failed to do so. The existence of the earlier suits and their outcomes was never disputed, and even a further affidavit could not have altered that position. The plaintiffs' real grievance - that they were not parties to the earlier suits - was unsupported, as the court found the two groups were one and the same.
Whether the previous suits involved the same parties and issues (res judicata)
The parties were virtually the same and the issues the same - registration as owners of the same parcels of land on account of adverse possession
The court traced HCCC No. 781 of 2004, HCCC No. 20 of 2010 (OS), HCCC No. 170 of 2010 and HC ELC No. 57 of 2012, all concerning the same parcels (L.R. 9312, 9313, 3760, 252). 'Twiga Men and Women Group' and 'Twiga Estate Squatters' were found to be one and the same group of squatters using different names to mislead the court. The decisions in the 2004 and 2010 suits were never appealed and remain valid.
Whether the temporary injunction should issue
Denied - it was dependent on the review succeeding and the suit being reinstated; in any event the plaintiffs had already been evicted
The injunction was sought pending the review application. Since the review was declined and the suit not reinstated, there was no substratum for an injunction. Further, the suit lands had been subdivided, allocated and occupied, and pursuant to the consent orders in HC ELC No. 57 of 2012 the plaintiffs had already vacated and their structures demolished, so no injunctive relief could lie.
Legal principles established
#- An applicant for review under Order 45 Rule 1 must demonstrate discovery of new and important matter or evidence not within his knowledge despite due diligence, or a mistake or error apparent on the face of the record, or any other sufficient reason
- Two separate parties cannot be in adverse possession of the same parcel of land at the same time; a group claiming under different names to mislead the court remains the same party for res judicata purposes
- An injunction will not lie to restrain an act which has already taken place
Court orders
#- 1.The application for review of the ruling of Muchelule J dated 5th July 2011 is declined
- 2.The order of injunction is denied
- 3.The plaintiffs' application dated 23rd September 2011 is dismissed with costs to the Defendant
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 3C of the Civil Procedure Act; Order 9 Rule 9 and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Twiga Estate Squarters Suing Through William Chege (Chairman) & 2 others v Mboi-Kamiti Farmers Company Limited [2015] KEELC 714 (KLR)", Case Analysis (2015). Notice of Motion dated 23rd September 2011 (suit previously dismissed by ruling of Muchelule J of 5th July 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/714/eng@2015-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.