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ELCStruck OutELC Suit (plaint dated 23rd June 2015, filed 25th June 2015)· [2018] KEELC 3763 (KLR)

Nelson Zadok Otieno (Suing as the Representative of the Estate of Manasse Ogot (Deceased) v Lucas Ong”Injo Gogo [2018] KEELC 3763 (KLR)

Environment and Land Court
18 April 2018
SKS.M. Kibunja
1,397 words in judgment
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The bottom line

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The Environment and Land Court in Siaya struck out a land claim because the same family had already lost the ownership dispute in earlier cases.

What this practically means

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Executive summary

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The Plaintiff, suing as representative of the estate of Manasse Ogot, claimed that his late father was allocated plot No.4 Ngiya Filling Station in 1973 by the County Council of Siaya, that the plot fell within East Alego/Mur-Ngiya/1694 (a subdivision of East Alego/Mur-Ngiya/317 registered in the names of the Defendant's late father and Nyangaya Opiyo), and sought eviction of the Defendant, a declaration of ownership, a permanent injunction, alternatively mesne profits, and costs. The Defendant opposed the claim, asserting permissive occupation that expired in 2000, and counterclaimed for the lifting of a caution the Plaintiff had lodged against parcel 1694. He also raised a preliminary objection that the suit offended Section 7 of the Civil Procedure Act (res judicata). The court, S.M. Kibunja J, framed one issue: whether a competent court had already decided ownership of the suit land between the parties or those claiming from them. The court found the green cards confirmed parcel 1694 arose from subdivision of the parent title, transferred to the Defendant in 2003 through succession. The Plaintiff produced no allotment letter, only evidence of a miscellaneous receipt, which the court held is not a document of title. Crucially, the Plaintiff had not disclosed that Milimani CMCC No.8745 of 2004 and Kisumu HCCC No.49 of 2007, filed by the Plaintiff and/or his brothers against the same Defendant over the same land, had both been dismissed with no appeal. Applying explanations 3, 4 and 6 to Section 7, the court upheld the preliminary objection, struck out the plaint as res judicata, and awarded costs to the Defendant.

Key legal issues

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01

Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is res judicata because the question of proprietorship of the suit land was already decided in Milimani CMCC No.8745 of 2004 and Kisumu HCCC No.49 of 2007, and those decisions had not been successfully appealed against

Reasoning

The court found both prior suits involved the same Defendant and were filed by the Plaintiff and/or his brothers in their own names or as administrators of their late father's estate, over plot No.4 or East Alego/Mur-Ngiya/1694. Both suits were dismissed and there was no evidence of successful appeals. Under explanations 3, 4 and 6 to Section 7, matters which might and ought to have been raised were deemed in issue, and persons claiming under litigants are bound.

p. 2
02

Whether the Plaintiff established ownership of plot No.4 based on the alleged 1973 allotment

Holding

The Plaintiff failed to produce any document of ownership, such as a letter of allotment; only a payment receipt was referenced, which is not a document of title

Reasoning

Although the Plaintiff claimed his late father was allocated plot No.4 Ngiya Filling Station in 1973 by the County Council of Siaya, no allotment letter or miscellaneous receipt No.003709 of 7th March 1973 was annexed to his list of documents. The letter from the County Clerk confirmed an allotment was made through that miscellaneous receipt, but the Plaintiff did not produce it.

p. 2

Legal principles established

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  • A payment receipt is not a substitute for a letter of allotment or other document of title to land
  • Where the issue of proprietorship of land has already been decided by courts of competent jurisdiction between the same parties or those claiming under them, a subsequent suit is res judicata even if the earlier suits were brought by relatives or co-administrators of the same estate

Court orders

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  1. 1.The Defendant's preliminary objection is upheld; the Plaintiff's suit is found to be res judicata and filed in contravention of Section 7 of the Civil Procedure Act
  2. 2.The Plaintiff's suit commenced through the plaint dated 23rd June 2015 and filed on 25th June 2015 is struck out
  3. 3.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7 (including explanations 3, 4 and 6)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over ownership of land; preliminary objection under Section 7 of the Civil Procedure Act, Cap 21

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, "Nelson Zadok Otieno (Suing as the Representative of the Estate of Manasse Ogot (Deceased) v Lucas Ong”Injo Gogo [2018] KEELC 3763 (KLR)", Case Analysis (2018). ELC Suit (plaint dated 23rd June 2015, filed 25th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3763/eng@2018-04-18

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