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ELCDismissedOriginating Summons filed 24th June 2015 (Land Parcel No. KIINE/KIANGAI/111)· [2017] KEELC 2921 (KLR)

William Ngari Mukinyo v Ephantus Kagunda Karimi [2017] KEELC 2921 (KLR)

Environment and Land Court
21 April 2017
BOB.N. Olao
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed an adverse possession land claim to proceed, ruling that past family lawsuits over the same land did not block it.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons on 24th June 2015 seeking a declaration that he had acquired 1½ acres out of land parcel KIINE/KIANGAI/111, registered in the defendant's name, by adverse possession after over twelve years of occupation. The defendant responded by raising res-judicata as a preliminary objection, relying on a history of litigation between the parties' families: Kerugoya SRMCC No. 51 of 1995 (a boundary dispute between the plaintiff's father and aunt and the defendant, later transferred to the Kirinyaga Land Disputes Tribunal by Makhandia J in Nyeri HC Civil Case No. 49 of 2003); Nyeri Judicial Review Case No. 6 of 2011 quashing the tribunal's award; and Kerugoya ELC Case No. 165 of 2014 filed by the plaintiff's aunt, still described as pending. Counsel agreed the res-judicata plea be determined first by written submissions. Applying Section 7 of the Civil Procedure Act and the four ingredients of res-judicata, the court examined each previous suit. The 1995 suit concerned only a boundary dispute in which adverse possession was neither raised nor could have been determined, since under Section 38 of the Limitation of Actions Act only the High Court can entertain adverse possession claims. The judicial review concerned only prerogative orders. Kerugoya ELC Case No. 165 of 2014 did not involve the plaintiff, was struck out as statute barred, and did not raise adverse possession. The court also applied Henderson v Henderson, Omondi v National Bank of Kenya, Karia v Attorney General, John Florence Maritime Services and Mukisa Biscuit. Holding the preliminary objection devoid of merit, the court dismissed it with costs on 21st April 2017, leaving the adverse possession claim to proceed to full hearing.

Key legal issues

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01

Whether the suit is barred by res-judicata

Holding

The plea of res-judicata fails. None of the identified previous suits (Kerugoya SRMCC No. 51 of 1995, Nyeri JR Case No. 6 of 2011, Kerugoya ELC Case No. 165 of 2014) raised or determined the issue of adverse possession, involved the plaintiff as a party or a person claiming under a former party in respect of that issue, and the Magistrate's Court and Land Disputes Tribunal lacked competence to determine adverse possession claims.

Reasoning

The court set out the ingredients of res-judicata under Section 7 of the Civil Procedure Act: same issue, same parties or those claiming under them, final determination, and a competent court. Examining each previous suit, it found the 1995 suit concerned only a boundary dispute; the judicial review only quashed a tribunal award; and Kerugoya ELC Case No. 165 of 2014 was struck out as statute barred, did not involve the plaintiff and did not raise adverse possession. Competence of the former forums was also lacking.

p. 3
02

Whether res-judicata can be raised as a preliminary objection

Holding

Res-judicata, being a principle of law, can properly be raised as a preliminary objection as defined in Mukisa Biscuit Co. v West End Distributors Ltd.

Reasoning

The court accepted, by agreement of counsel, that the res-judicata plea be canvassed first as a preliminary issue by written submissions, and confirmed that because res-judicata is a pure point of law it may properly be determined as a preliminary objection without going into the merits of the adverse possession claim.

p. 2

Legal principles established

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  • A claim for adverse possession can only be brought in the High Court, not in a subordinate court or Land Disputes Tribunal, under Section 38 of the Limitation of Actions Act
  • Res-judicata cannot be founded on a former suit in which the issue now litigated was neither raised nor determined by a competent court

Court orders

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  1. 1.The defendant's Preliminary Objection raising the plea of res-judicata is dismissed
  2. 2.The defendant to pay costs of the Preliminary Objection

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 38

Cases cited (5)

  • KARIA & ANOTHER VS ATTORNEY GENERAL
    2005 1 E.A 83
  • HENDERSON VS HENDERSON
    (1843) 67 E.R 313
  • OMONDI VS NATIONAL BANK OF KENYA LIMITED & OTHERS
    (2001) E.A 177
  • JOHN FLORENCE MARITIME SERVICES LTD & ANOTHER VS CABINET SECRETARY FOR TRANSPORT AND INFRASTRUCTURE
    C.A CIVIL APPEAL No. 42 of 2014 MALINDI
  • MUKISA BISCUIT CO. VS WEST END DISTRIBUTORS LTD
    1969 E.A 696
Jurisdiction invoked
Environment and Land Court jurisdiction over adverse possession claims; Section 7 of the Civil Procedure Act; Section 38 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "William Ngari Mukinyo v Ephantus Kagunda Karimi [2017] KEELC 2921 (KLR)", Case Analysis (2017). Originating Summons filed 24th June 2015 (Land Parcel No. KIINE/KIANGAI/111). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2921/eng@2017-04-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.