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ELCDismissedOriginating Summons (Malindi) — suit filed 12 November 2019 claiming adverse possession to Plot Subdivision No. 4098 (Original No. 3241/53/III/MN); the striking-out application dated 31 January 2020· [2020] KEELC 173 (KLR)

Kanze Safari Ndungo & 3 others v Abdul Nassir Salim Naaman & another [2020] KEELC 173 (KLR)

Environment and Land Court of Kenya
18 November 2020
1,060 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 refused to throw out an adverse possession claim because the plaintiffs were never parties to the earlier eviction case.

What this practically means

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Executive summary

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The 1st defendant, Abdul Nassir Salim Naaman, applied by notice of motion dated 31 January 2020 to strike out an Originating Summons filed on 12 November 2019 by four plaintiffs claiming title to Plot Subdivision No. 4098 (Original No. 3241/53/III/MN) by adverse possession. The plaintiffs deposed that they or their families purchased portions from the 1st defendant and have occupied the land since 1996 (in the 3rd plaintiff's case, since the 1950s), and that the defendants evicted them and demolished their structures in 2019. The 1st defendant deposed that the plaintiffs were evicted through execution of the decree in Malindi ELC No. 51 of 2009, in which he had sued Kassim Maona for eviction, judgment having been entered in his favour on 31 October 2014, and that the present suit was an attempt to reintroduce the same cause of action through the back door. The 1st plaintiff replied that he and the other plaintiffs were never parties to that suit and are not bound by its judgment. The court applied Section 7 of the Civil Procedure Act and held that res judicata requires the same matter between the same parties or those claiming under them under the same title. As the plaintiffs were not parties to the former suit, and it was not demonstrated on affidavit evidence that they came onto the land through Mr. Kassim, the suit was not res judicata. The rival assertions — completed eviction versus extinguished title — required evidence at trial. The application dated 31 January 2020 was dismissed with costs, and the Originating Summons allowed to proceed to be heard on the merits.

Key legal issues

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01

Whether the suit is res judicata by virtue of Malindi ELC No. 51 of 2009

Holding

The suit is not res judicata because the plaintiffs were not parties to the former suit and it was not demonstrated that they claim under Kassim Maona, the defendant in that case.

Reasoning

Section 7 requires the same matter between the same parties or those claiming under them under the same title. In Malindi ELC No. 51 of 2009, Naaman sued Kassim Maona for eviction. The plaintiffs here were not parties. The court could not, on affidavit evidence, conclude they came into the land through Mr. Kassim; their own affidavits suggest independent occupation, and proof of derivative title would require evidence.

p. 2
02

Whether the rival factual claims justify striking out

Holding

No — the defendants' claim of completed eviction and the plaintiffs' assertion of extinguished title are factual matters requiring evidence at the hearing.

Reasoning

The defendants asserted the plaintiffs had already been evicted pursuant to the decree in the former suit, while the plaintiffs asserted the defendants' title had been extinguished by adverse possession. Both are contested assertions of fact that cannot be resolved on a striking-out application; the suit must proceed to full trial on the merits.

p. 2

Legal principles established

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  • Striking out a suit is a drastic remedy, to be applied only in the clearest of cases, though a suit that is res judicata is liable to be struck out.
  • Res judicata under Section 7 of the Civil Procedure Act requires the same matter in issue between the same parties or those claiming under them, litigating under the same title.

Court orders

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  1. 1.The application dated 31 January 2020 seeking to strike out the Originating Summons is dismissed
  2. 2.The application is dismissed with costs
  3. 3.The Originating Summons is allowed to proceed for the plaintiffs to be heard on merits

Authorities

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Legislation

  • Civil Procedure ActSection 7
Jurisdiction invoked
Section 7, Civil Procedure Act (res judicata) in relation to an Originating Summons under the Environment and Land Court's original jurisdiction

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, "Kanze Safari Ndungo & 3 others v Abdul Nassir Salim Naaman & another [2020] KEELC 173 (KLR)", Case Analysis (2020). Originating Summons (Malindi) — suit filed 12 November 2019 claiming adverse possession to Plot Subdivision No. 4098 (Original No. 3241/53/III/MN); the striking-out application dated 31 January 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/173/eng@2020-11-18

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