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ELCStruck OutELC Case No. 115 of 2013· [2018] KEELC 648 (KLR)

Abdalla Makokha Kachisa v Jenipher Emieso Wesala & 2 others [2018] KEELC 648 (KLR)

Environment and Land Court
20 November 2018
NMN. A. Matheka
913 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kakamega court struck out a man's claim to two acres of family land because the same dispute was already before another Kenyan court.

What this practically means

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Executive summary

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The plaintiff, Abdalla Makokha Kachisa, brought an originating summons before the Environment and Land Court at Kakamega claiming two acres out of L.P. No. E/Wanga/Lubinu/1058 by adverse possession. He sought a declaration that the defendants' title was extinguished under the Limitation of Actions Act, registration of the two acres in his name, an injunction against interference with his use of the land, and an order compelling sub-division and transfer. He testified that he occupied and farmed the land from 1974 to 1986 and until 2012, that the late Wesala Webuti Lukandu, his uncle, had given him the two acres, and that the 1st and 2nd defendants are the deceased's widows who had taken out secret succession proceedings and threatened eviction. The court did not reach the merits. It found that Succession Cause No. 371 of 2008 in the Kakamega High Court, concerning the same land, was pending when this suit was filed, and that the parties and issues were the same. Applying Sections 6 and 7 of the Civil Procedure Act, the court held the suit was sub judice and an abuse of court process, noting the plaintiff had already placed a caution on the suit land and should pursue his claim in the succession cause as an objector. The suit was struck out with no orders as to costs. No case authorities were cited.

Key legal issues

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01

Whether the adverse possession claim was barred by the sub judice rule

Holding

The suit was struck out as sub judice because the same land was the subject of pending succession proceedings

Reasoning

Sections 6 and 7 of the Civil Procedure Act bar a court from trying a suit where the matter directly and substantially in issue is pending or has been decided in a former suit between the same parties or parties claiming under the same title. The succession cause was filed before this suit, concerned the same land, and the plaintiff had already lodged a caution. He should pursue his claim as an objector in that cause.

p. 2

Legal principles established

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  • A suit is barred as sub judice where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or those claiming under them, pending in a competent court

Court orders

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  1. 1.The suit is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActCap 22 Laws of Kenya
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction under limitation of actions and land disputes (Limitation of Actions Act Cap 22; Civil Procedure Act Cap 21, Sections 6 and 7)

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, "Abdalla Makokha Kachisa v Jenipher Emieso Wesala & 2 others [2018] KEELC 648 (KLR)", Case Analysis (2018). ELC Case No. 115 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/648/eng@2018-11-20

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