Fatuma Gatitu Muhamudo & another v Yusuf Juma (The administrator of the estate of the late Juma Yusuf) [2019] KEELC 85 (KLR)
The bottom line
#Kenya's Environment and Land Court in Meru allowed landowners to block dealings on their occupied land for one year, ruling a new adverse possession claim was not barred by an earlier succession case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in respect of Isiolo Kadhis succession cause no. 8/2015 and the subsequent Meru High Court matters
The suit is not res judicata because the issue now raised (adverse possession) was neither litigated before the Kadhi's court nor within that court's jurisdiction, and the objection requires probing of facts.
Applying section 7 of the Civil Procedure Act and the five elements for res judicata set out in Michael Gachoki Gicheru v Joseph Karobia Gicheru, the court held that although the parties and subject land may be the same, the issues differ: the Kadhi's court dealt with distribution of the estate, while the present claim is anchored on adverse possession, which the Kadhi's court had no jurisdiction to determine. The defendant's contention that the plaintiffs always claimed by ancestry is not a pure point of law since it invites the court to peruse evidence. The preliminary objection was therefore dismissed.
Whether temporary injunction and inhibition orders should issue
The plaintiffs established a prima facie case with high chances of success, irreparable damage and balance of convenience; injunction and inhibition were granted but limited to one year.
The plaintiffs asserted long, open and continuous occupation of ½ share of the suit land since 1958, which the defendant had not rebutted; even before the Kadhi's court the 2nd plaintiff had stated they use the land as their home. The court found it necessary to preserve the status quo and the substratum of the suit pending hearing, applying the Giella v Cassman Brown criteria. The defendant's complaint that the supporting affidavit was not commissioned was met by noting that a proper affidavit was filed on 3.10.2019.
Legal principles established
#- A claim of adverse possession is a different issue from distribution of an estate, and a Kadhi's court lacks jurisdiction to determine adverse possession; therefore a subsequent adverse possession suit is not res judicata vis-à-vis a succession cause.
- A preliminary objection must be a pure point of law and cannot be sustained where it requires probing of evidence and factual detail.
Court orders
#- 1.The preliminary objection dated 17.9.2019 is dismissed
- 2.The court allows the prayers for inhibition and injunction set out in the application dated 8/7/2019 but such orders shall stay in force for a period of 1 year only
- 3.Each party to bear their own costs of the preliminary objection and the application
- Jurisdiction invoked
- Article 162(2)(b) jurisdiction of the Environment and Land Court (implied from the court's mandate); the ruling concerns section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fatuma Gatitu Muhamudo & another v Yusuf Juma (The administrator of the estate of the late Juma Yusuf) [2019] KEELC 85 (KLR)", Case Analysis (2019). Not stated in judgment (Meru ELC; ruling on notice of motion dated 8.7.2019 and preliminary objection dated 17.9.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/85/eng@2019-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.