Kanze Safari Ndungo & 3 others v Abdul Nassir Salim Naaman & another [2020] KEELC 173 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is res judicata by virtue of Malindi ELC No. 51 of 2009
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.
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.
Whether the rival factual claims justify striking out
No — the defendants' claim of completed eviction and the plaintiffs' assertion of extinguished title are factual matters requiring evidence at the hearing.
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.
Legal principles established
#- 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
#- 1.The application dated 31 January 2020 seeking to strike out the Originating Summons is dismissed
- 2.The application is dismissed with costs
- 3.The Originating Summons is allowed to proceed for the plaintiffs to be heard on merits
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.