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ELCStruck OutNakuru ELC OS No. 105 of 2016 (Originating Summons, filed 3rd October 2016)· [2019] KEELC 1208 (KLR)

Harun Waiharo Gitonga & 8 other v Ronald Mwangi Njuguna [2019] KEELC 1208 (KLR)

Environment and Land Court
30 October 2019
DOD. O. Ohungo
1,822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a second land case because the same dispute over the same property had already been decided between the same family.

What this practically means

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Executive summary

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The plaintiffs filed an Originating Summons on 3rd October 2016 seeking a declaration that they were entitled to Bahati/Kabatini Block 1/2281 by adverse possession since 19th September 1984, an order for transfer, and alternatively a declaration that the defendant held the title in trust for them, under sections 37 and 38 of the Limitation of Actions Act. The defendant, Ronald Mwangi Njuguna, filed a Notice of Motion dated 18th June 2018 seeking striking out of the suit as res judicata, relying on the judgment in Nakuru HCCC No. 146 of 2010, Ronald Mwangi Njuguna vs Wanyoike Gitonga, delivered on 10th November 2016, in which he had been the plaintiff. The plaintiffs opposed, arguing that the parties in the earlier suit differed and that no representative capacity had been pleaded. The plaintiffs relied on written materials without filing a replying affidavit explaining their relationship to Wanyoike Gitonga. Ohungo J, applying the conjunctive elements of res judicata from Maithene Malindi Enterprises, found that the same parcel had been the subject of the former suit; that the defendant had been plaintiff there; that 7 of the 9 plaintiffs bore the name Gitonga and one the name Wanyoike, establishing a direct relationship with the earlier defendant; and that the earlier judgment by Janet Mulwa J had conclusively determined the adverse possession question, dismissing the plaintiff's suit, allowing the counterclaim and cancelling the title. The court struck out the suit with costs to the defendant and awarded costs of the motion. Note: the case number as printed is not stated in the excerpt and has been inferred from the filing reference; the record should be verified.

Key legal issues

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01

Whether the present adverse possession suit is res judicata in light of the judgment in Nakuru HCCC No. 146 of 2010

Holding

Yes - the same subject matter and substantially the same parties/issues were litigated and determined in the former suit, where the court found the Gitonga family entitled by adverse possession and cancelled the plaintiff's title

Reasoning

The court found the same parcel, Bahati/Kabatini Block 1/2281, was the subject matter of both suits. The defendant here had been plaintiff in the earlier suit, and the current plaintiffs are directly related to Wanyoike Gitonga, the earlier defendant - 7 of 9 plaintiffs bear the name Gitonga and another bears the name Wanyoike - and they did not rebut this by affidavit. The earlier judgment by Janet Mulwa J conclusively determined the adverse possession question, dismissing the plaintiff's suit and allowing the counterclaim, declaring the registered title null and void. The issue of occupation since the Muthama Kamau era was therefore already decided.

p. 3

Legal principles established

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  • For the bar of res judicata to be upheld, the elements (same issue, same or claiming-under parties, same title, final determination, competent court) must all be satisfied conjunctively
  • Res judicata is a jurisdictional bar that operates as a complete estoppel and cannot be circumvented even by consent

Court orders

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  1. 1.The suit (Originating Summons dated 3rd October 2016) is struck out with costs to the defendant
  2. 2.The defendant is awarded costs of the Notice of Motion dated 18th June 2018

Authorities

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Legislation

  • Limitation of Actions Actsections 37 and 38

Cases cited (5)

  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • William Koross vs. Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR
  • Ngugi vs. Kinyanjui & 3 Others
    [1989] KLR 146
  • Henderson vs. Henderson
    [1843] Hare 100, 115
  • Ronald Mwangi Njuguna v Wanyoike Gitonga (Nakuru HCCC No. 146 of 2010)
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (Cap 22), sections 37 and 38, invoked by the plaintiffs' Originating Summons

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, "Harun Waiharo Gitonga & 8 other v Ronald Mwangi Njuguna [2019] KEELC 1208 (KLR)", Case Analysis (2019). Nakuru ELC OS No. 105 of 2016 (Originating Summons, filed 3rd October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1208/eng@2019-10-30

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