James Barasa Mukoleli v David Lusweti Wasike & 2 others [2019] KEELC 2568 (KLR)
The bottom line
#A Bungoma court struck out a land claim already decided in an earlier case, but protected the buyer's occupation of the other disputed parcel until trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the adverse possession claim over parcel S. Malakisi/S. Namwela/736 is barred by res judicata
Yes. The claim should have been raised as a counter-claim in the former suit and the plaintiff also relinquished the claim through the consent; the suit against the 3rd defendant was struck out.
The same parcel was the subject of the former suit between the same parties, determined by consent before Mukunya J. Explanation No. 4 to Section 7 of the Civil Procedure Act deems matters which might and ought to have been raised to have been in issue. The plaintiff conceded he instructed his advocate to file an Originating Summons but only a defence was filed. Henderson v Henderson extends the plea to all points properly belonging to the litigation.
Whether stay of further proceedings in the former suit could be granted
No, absent an appeal against the consent judgment there is no basis to stay proceedings in the former suit.
There is a final consent judgment in the former case, arrived at with the participation of the plaintiff. In the absence of any appeal against that consent, the court found no basis for a stay or for inhibition over parcel 736, since no pending dispute over its ownership exists.
Whether an inhibition order should issue over parcel S. Malakisi/S. Namwela/737
Yes. The parcel is at risk of alienation and the plaintiff's suit would be rendered futile if it were alienated; only minimal prejudice to the 2nd defendant.
Section 68(1) of the Land Registration Act empowers the court to inhibit dealings. Applying the factors in Githinji v Githinji, the court found the parcel at risk of alienation, the suit would be nugatory if alienated, and the plaintiff had an arguable claim supported by the 1st defendant's admission of the 1995 sale. The 2nd defendant's only prejudice was inability to register dealings pending trial.
Whether a temporary injunction should issue restraining interference with the plaintiff's occupation of parcel 737
Yes. The plaintiff established a prima facie case with a probability of success and irreparable harm not compensable in damages.
Guided by Giella v Cassman Brown, Nguruman and Mrao, the court found the plaintiff purchased 4 acres in 1995, produced photographs of occupation, and was supported by the 1st defendant's affidavit confirming 24 years of occupation. Eviction would render him homeless; unlawful acts cannot be atoned by damages, citing Waki J in Mohamed v Commissioner of Lands.
Legal principles established
#- A matter which might and ought to have been raised as a defence or counter-claim in a former suit is deemed to have been directly and substantially in issue, and is barred by res judicata.
- The res judicata plea extends to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.
- An inhibition order, like an injunction, preserves property in dispute pending trial; the court considers risk of alienation, whether refusal would render the suit nugatory, arguability of the case and prejudice to the other party.
- For a prima facie case on injunction, the applicant need not establish title; it is enough to show a fair and bona fide question as to the existence of the alleged right, on a balance of probabilities.
Court orders
#- 1.The suit against the 3rd defendant is res judicata and is struck out with no orders as to costs
- 2.The prayer to stay further proceedings in Bungoma Environment and Land Court Case No. 42 of 2012 is dismissed
- 3.An order of inhibition issued directed at the Land Registrar Bungoma restricting any dealings with land parcel NO S. MALAKISI/S. NAMWELA/737 until this case is heard and finally determined
- 4.The 2nd defendant, his agents, nominees representatives servants or any other person acting on his behalf, restrained from entering, remaining, evicting or causing destruction of the plaintiff's property on land parcel NO S. MALAKISI/S. NAMWELA/737 until this case is heard and finally determined
- 5.The plaintiff directed to ensure this suit is ready for trial so that it is determined within 12 months from today otherwise the order for injunction shall lapse
- 6.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules; Section 68(1) of the Land Registration Act; Articles 48 and 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Barasa Mukoleli v David Lusweti Wasike & 2 others [2019] KEELC 2568 (KLR)", Case Analysis (2019). Bungoma Environment and Land Court Case (suit number not stated on the face of the ruling; related suits: Bungoma ELC No. 47 of 2012 / No. 42 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2568/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.