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ELCPartially AllowedNot stated in judgment (Meru ELC; ruling on notice of motion dated 8.7.2019 and preliminary objection dated 17.9.2019)· [2019] KEELC 85 (KLR)

Fatuma Gatitu Muhamudo & another v Yusuf Juma (The administrator of the estate of the late Juma Yusuf) [2019] KEELC 85 (KLR)

Environment and Land Court
4 December 2019
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) dealt simultaneously with the defendant's notice of preliminary objection dated 17.9.2019 and the plaintiffs' notice of motion dated 8.7.2019 seeking temporary injunction and inhibition over ½ share of land parcel LR Ntima/Igoki/610 (0.06 Ha). The plaintiffs claimed to have occupied their share openly, continuously and notoriously since 1958 and feared eviction or dealings on the land. The defendant objected that the suit was res judicata, being barred by section 7 of the Civil Procedure Act because the same land had been distributed to the children of the late Juma Yusuf in Isiolo Kadhi's succession cause no. 8 of 2015 (determined 31.5.2017), with the 2nd plaintiff's appeal (Meru HCCC no. 48/2017) and a succession miscellanea cause having been dismissed; he also contended the plaintiffs lacked locus and that the supporting affidavit was not commissioned. The court applied the five elements of res judicata from section 7 and held that the present claim, anchored on adverse possession, raised issues different from the estate distribution before the Kadhi's court, which itself lacked jurisdiction over adverse possession; the objection also depended on facts and was not a pure point of law. The preliminary objection was dismissed. Applying the Giella v Cassman Brown criteria, the court found a prima facie case, irreparable harm and balance of convenience in the plaintiffs' favour and granted injunction and inhibition, but limited to one year. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the suit is res judicata in respect of Isiolo Kadhis succession cause no. 8/2015 and the subsequent Meru High Court matters

Holding

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.

Reasoning

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.

p. 3
02

Whether temporary injunction and inhibition orders should issue

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 17.9.2019 is dismissed
  2. 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. 3.Each party to bear their own costs of the preliminary objection and the application

Authorities

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Legislation

  • Civil Procedure Actsection 7

Cases cited (3)

  • Michael Gachoki Gicheru vs Joseph Karobia Gicheru
    Kerugoya ELC No. 783/2013
  • Henry Wanyama Khaemba vs Standard Chartered Bank Kenya LTD and another
    Nairobi High Court, Commercial and Admiralty Division Civil Suit No. 335/2013
  • Giella vs Cassman Brown
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

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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, "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.