John Barasa Matifari v Simon Wanjala Mabonga [2019] KEELC 1507 (KLR)
The bottom line
#A Kenyan court ruled a landowner could pursue an adverse possession claim even after losing an earlier case over the same land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection was competent given that the Notice of Motion it targeted had been overtaken by events
The Preliminary Objection was struck out as it had no foundation; the application it attacked was moot since judgment had been delivered in Bungoma CMCC No. 5 of 2005
The Preliminary Objection was founded entirely on the plaintiff's Notice of Motion dated 11th May 2018, which sought transfer and consolidation of the subordinate court suit. That suit had already proceeded to judgment on 25th July 2018 and thus no longer existed for purposes of trial or consolidation. With the application overtaken by events, the objection had no basis and could only be struck out.
Whether the suit is res judicata and an abuse of court process
Res judicata does not apply because the adverse possession claim could not have been determined by the subordinate court in the earlier suit
Section 7 of the Civil Procedure Act and case law on res judicata were cited by the defendant's counsel. However, the issue of adverse possession pleaded in the Originating Summons was neither pleaded nor determinable in Bungoma CMCC No. 5 of 2005, as the subordinate court lacked jurisdiction over adverse possession claims. Had the earlier suit been in the High Court, a res judicata plea would have been well founded.
Legal principles established
#- A party may file a fresh suit to determine an issue which was not, and could not have been, determined in previous litigation between the parties
- Res judicata cannot be invoked where the issue pleaded in the later suit (adverse possession) was beyond the jurisdiction of the court that determined the earlier suit
Court orders
#- 1.The defendant's Preliminary Objection dated 18th July 2018 is dismissed with costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction (the suit is an Originating Summons for adverse possession; no specific provision quoted)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Barasa Matifari v Simon Wanjala Mabonga [2019] KEELC 1507 (KLR)", Case Analysis (2019). Originating Summons dated 4th December 2017 (Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1507/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.