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ELCPartially AllowedEldoret High Court Civil Case (Originating Summons) – Originating Summons dated 24/7/2017 (Kitale)· [2018] KEELC 4583 (KLR)

Pius Isaiga & 57 others v Sammy Kiprotich Kosgei & another [2018] KEELC 4583 (KLR)

High Court of Kenya (Environment and Land jurisdiction), Kitale
22 January 2018
MNMwangi Njoroge
4,389 words in judgment
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The bottom line

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A Kenyan court threw out 58 people's land claim because the same dispute had already been decided between them, and they hid that earlier judgment.

What this practically means

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Executive summary

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The 58 plaintiffs filed an Originating Summons on 24/7/2017 seeking declarations that they had acquired 11.2 hectares carved out of NANDI/KAPKANGANI/272 (now Nos. 1371-1384) by adverse possession, that the defendants held title in trust for them, that the defendants' title was extinguished, cancellation of registration, transfer, and that the 1989 orders in Eldoret CMCC No. 794 of 1979 were unenforceable. The defendants filed a Notice of Motion dated 16/8/2017 seeking to set aside conservatory orders and to dismiss the summons, alleging material non-disclosure, res judicata, and that the plaintiffs were vexatious litigants. Mwangi Njoroge J found that the plaintiffs had failed to disclose the judgment in Kitale Constitutional Petition No. 6 of 2016, in which a court had conclusively found that they had not acquired the suit land by adverse possession, time having stopped running when they filed suit in 1975. The court held that factual findings made in a constitutional petition bind the parties and that the plaintiffs were estopped from disputing the petition court's jurisdiction by arguing that a petition was not the proper forum for adverse possession claims. The Originating Summons was therefore dismissed as res judicata with costs to the applicants. The prayer that the plaintiffs be declared vexatious litigants was refused because only the Attorney General may bring such an application under the Vexatious Proceedings Act. The status quo orders extended on 18/10/2017 were vacated, and the costs of the motion were awarded to the applicants.

Key legal issues

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01

Material non-disclosure

Holding

The plaintiffs were culpable of material non-disclosure by failing to disclose the judgment in Kitale Constitutional Petition No. 6 of 2016 and Kakamega High Court Civil Appeal No. 49 of 1991

Reasoning

The court compared the prayers in the petition with the Originating Summons and found that the issue of adverse possession had been determined in the petition. The omission to disclose that petition and its judgment, which directly determined the prescriptive rights claim now repeated, was material because it would affect the court's decision.

p. 4
02

Res judicata

Holding

The Originating Summons was res judicata, the issue of adverse possession having been conclusively determined between the same parties in Kitale Constitutional Petition No. 6 of 2016

Reasoning

The petition sought a declaration of adverse possession and the court made a specific finding against it; the petitioners had not appealed. A party cannot escape a binding finding of fact by later arguing that a constitutional petition was the wrong forum. Proceeding would risk a retrial of issues already decided.

p. 5
03

Vexatious litigant declaration

Holding

Refused; the application could only be brought by the Attorney General under the Vexatious Proceedings Act

Reasoning

Section 3 of the Act requires an application by the Attorney General satisfying the High Court that a person has habitually and constantly and without reasonable ground instituted vexatious proceedings. The applicants gave no justification for the court to make such an order themselves.

p. 5

Legal principles established

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  • Findings of fact made by a constitutional court, necessary to the grant or denial of constitutional remedies, bind the parties and render subsequent suits on the same facts res judicata
  • Only the Attorney General may apply under the Vexatious Proceedings Act for a declaration that a person is a vexatious litigant

Court orders

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  1. 1.Prayer No. 3 of the Notice of Motion dated 16/8/2017 granted (dismissal of the Originating Summons as res judicata)
  2. 2.Prayer for declaration of vexatious litigants refused
  3. 3.Originating Summons dated 24/7/2017 dismissed with costs to the applicants
  4. 4.Orders of status quo extended on 18/10/2017 vacated
  5. 5.Costs of the application dated 16/8/2017 borne by the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Civil Procedure RulesOrder 9 Rules 1 and 7
  • Vexatious Proceedings ActSection 3
  • Constitution of Kenya 2010Articles 27, 28, 31, 35, 40, 43, 47, 50, 159

Cases cited (8)

  • Githu -vs- Ndele
    (1984) KLR 776
  • Wilson Katama and 101 others -vs- Salim Abdalla Bakshwen and Another
    Civil Appeal No. 11 of 2014
  • Malindi and Kamunye & Another -vs- Pioneer General Assurance Society Ltd
    (1971) EA 263
  • Kenya Commercial Bank Ltd -vs- John Benjamin Wanyama
    Kakamega HCCA No. 97 of 1999
  • Kenya National Private Security Workers Union -Vs- Total Security Surveillance Ltd
    2014 eKLR
  • Nancy Mwangi T/A Worthlin -vs- Airtel Network (K) Ltd and 2 Others
    2014 eKLR
  • Mercy Munene King'oo & Another -vs- Safaricom Ltd and Another
    2016 eKLR
  • Enock Kiwao -vs- Hamid Abdallah Mbarak
    2015 eKLR
Jurisdiction invoked
Article 50 and 159 of the Constitution invoked by parties; High Court jurisdiction disputed on res judicata grounds

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, "Pius Isaiga & 57 others v Sammy Kiprotich Kosgei & another [2018] KEELC 4583 (KLR)", Case Analysis (2018). Eldoret High Court Civil Case (Originating Summons) – Originating Summons dated 24/7/2017 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4583/eng@2018-01-22

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