James Maina Kinya v Gerald Kwendaka [2018] KEELC 3155 (KLR)

The court noted that res judicata bars jurisdiction and quoted section 7 of the Civil Procedure Act. Although the earlier Nyeri HCCC No. 30 of 1988 concerned the same property and parties, the relief sought there was specific performance of a contract of sale, whereas the present originating summons seeks title by limitation. Different causes of action mean no bar to jurisdiction.

Entry under a sale agreement is permitted, so possession does not become adverse while the agreement subsists; but once the purchaser pays the full price and takes possession, the true owner is dispossessed and limitation runs. The Plaintiff completed payment and was put in possession in 1983, so time ran from that date.

Time stops running only when the title owner sues to recover the land or asserts ownership, e.g. by counterclaim. The 1988 suit was the claimant's own suit for specific performance, and the defendant never filed an independent suit or counterclaim. The judgment itself lapsed after 12 years under section 4(4) of the Limitation of Actions Act and did not displace the adverse possession that commenced in 1983.

Applying Maweu v Liu Ranching, the Plaintiff had to show possession adequate in continuity, publicity and extent, and adverse to the registered owner. The Plaintiff developed the land extensively, collected rent and excluded the Defendant, demonstrating animus possidendi. The Defendant did not controvert the evidence, gave no particulars or proof of the alleged fraud, and the 1996 judgment was never appealed or set aside.