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ELCDismissedOriginating Summons filed 12th June 2001 (amended 13th January 2015)· [2018] KEELC 2335 (KLR)

Benjamin Kisaka Muyala v John Wafula Makokha [2018] KEELC 2335 (KLR)

Environment and Land Court
26 July 2018
BOBOAZ N. OLAO
1,233 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that withdrawn lawsuits cannot block a landowner's adverse possession claim from being heard on its merits.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (Olao J) on a preliminary objection dated 6th May 2015 raised by the defendant in an adverse possession suit commenced by Originating Summons on 12th June 2001 and amended on 13th January 2015. The plaintiff claims to have acquired by adverse possession land parcel East Bukusu/South Kanduyi/659 (originally pleaded as parcels 5361-5364), having been in open, peaceful and uninterrupted occupation since 1938, continuing after the 1969 land adjudication. The defendant, appearing in person, objected that the suit is res judicata, citing Kakamega High Court Civil Case No.10 of 1991, Civil Appeal No.86 of 2000 and Civil Case No.100 of 1982, all involving the same parties or subject matter. The court set out the conditions for res judicata under Section 7 of the Civil Procedure Act as summarised in Karia v A.G., including that the former suit must have been heard and finally decided by a competent court between the same parties. Examining the prior suits, the court found that Civil Case No.10 of 1991 was withdrawn on 14th October 1997 and so was not heard and finally decided; the appeal in Civil Appeal No.86 of 2000 concerned tribunal awards from Kanduyi Land Disputes Tribunal Case No.10 of 1990, and the tribunal lacked jurisdiction to determine adverse possession, a matter reserved to the High Court or, after 30th August 2011, the Environment and Land Court; and Civil Case No.100 of 1982 was withdrawn before Aganyanya J. The court held the plea unproven, dismissed the preliminary objection with costs to the plaintiff, and directed the parties to take the earliest available date for priority hearing of the 2001 suit.

Key legal issues

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01

Whether Kakamega High Court Civil Case No.10 of 1991 bars this suit

Holding

It does not, because the suit was withdrawn on 14th October 1997 and was therefore not heard and finally decided

Reasoning

The same parties were involved, with roles reversed, but the Originating Summons was withdrawn before Justice Tanui. Section 7 of the Civil Procedure Act requires that the former suit have been heard and finally decided. A withdrawal does not satisfy this requirement, so res judicata cannot be founded on that suit.

p. 2
02

Whether Kakamega High Court Civil Appeal No.86 of 2000 bars this suit

Holding

It does not, because the underlying tribunal proceedings could not have determined adverse possession

Reasoning

The appeal arose from an award by the Kanduyi Land Disputes Tribunal in Case No.10 of 1990, later varied by the Provincial Lands Appeals Committee. Applications were determined by Justices Mbito, Angawa and Etyang, but none decided adverse possession, a matter within the exclusive competence of the High Court or the Environment and Land Court.

p. 2
03

Whether Kakamega High Court Civil Case No.100 of 1982 bars this suit

Holding

It does not; that suit involved different plaintiffs against the defendant and was withdrawn before Aganyanya J in 1985

Reasoning

The suit was brought by Melabu Wasike and Herbert Wanyonyi against the defendant, not the present plaintiff, and its subject matter is unclear from the documents. It was likewise withdrawn, so it was neither between the same parties nor heard and finally decided.

p. 2

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act requires that the former suit was between the same parties, that the matter was directly and substantially in issue, and that it was heard and finally decided by a competent court
  • A suit that is withdrawn has not been heard and finally decided and cannot found a plea of res judicata
  • The onus of proving res judicata lies on the party raising the plea
  • Land Disputes Tribunals lacked jurisdiction to determine claims of adverse possession, which only the High Court (or, after 30th August 2011, the Environment and Land Court) could determine

Court orders

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  1. 1.The defendant's Preliminary Objection dated 6th May 2015 is dismissed
  2. 2.Costs of the Preliminary Objection to the Plaintiff
  3. 3.Parties directed to take the earliest available date in the new term so that the suit is heard and determined on priority basis
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over adverse possession claims relating to land (formerly High Court jurisdiction); Civil Procedure Act Section 7 on res judicata

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, "Benjamin Kisaka Muyala v John Wafula Makokha [2018] KEELC 2335 (KLR)", Case Analysis (2018). Originating Summons filed 12th June 2001 (amended 13th January 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2335/eng@2018-07-26

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