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ELCStruck OutNakuru HCC (Originating Summons) No. 58 of 2019 (as inferred from the originating summons dated 23rd September 2019; number not expressly stated in the judgment)· [2020] KEELC 427 (KLR)

Daniel Kipilat Rotich & 32 others v David Sironga Tukai & Land Registrar Narok [2020] KEELC 427 (KLR)

Environment and Land Court of Kenya
3 December 2020
DOD. O. Ohungo
1,645 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 33 farmers' adverse possession claim because their right to stay on the land was already decided in an earlier eviction case.

What this practically means

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Executive summary

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By Notice of Motion dated 17th June 2020, the first defendant sought striking out of an originating summons in which 33 plaintiffs claimed to have acquired Narok/Cis Mara/Ololulunga/161 by adverse possession, asserting they and their parents had lived on the parcel since 1970. The first defendant contended the suit was res judicata, having been preceded by Nakuru HCC No. 253 of 2005 (David Sironga ole Tukai v Francis Arap Muge & 2 Others), in which the trial court's judgment of 7th June 2013 was reversed by the Court of Appeal on 18th December 2014, allowing eviction of the defendants, their agents, servants and all members of Kapkween Farmers Co-operative Society Limited from the same parcel. The plaintiffs replied that they were never parties to that suit, were not members of the co-operative, and did not litigate under the same title. The court, per D. O. Ohungo J, applied Section 7 of the Civil Procedure Act and explanation 6. Since the plaintiffs were covered by the eviction order as servants, agents or workers of the former defendants, they were deemed parties to the former suit. The issue of their entitlement to remain on the parcel having been conclusively determined, they could not re-litigate it by way of an adverse possession claim; the suit, being built around the eviction order served on them in September 2019, was res judicata and the court lacked jurisdiction to try it. The suit was struck out with costs to the first defendant; no costs were awarded to the second defendant, who did not participate.

Key legal issues

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Whether the plaintiffs' suit for adverse possession is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

Yes. The same parties, litigating under the same title, had the issue of their right to remain on Narok/Cis Mara/Ololulunga/161 finally determined in Nakuru HCC No. 253 of 2005 and the Court of Appeal judgment of 18th December 2014 ordering their eviction; the suit was struck out.

Reasoning

Section 7 codifies res judicata. The key ingredients were met: the parcel was identical; the Court of Appeal ordered eviction of the defendants, their agents, servants and members of the co-operative. The plaintiffs were served with the eviction order and conceded it targeted them; as they were not named parties they fell within 'servants, agents or workers' and under explanation 6 are deemed parties to the former suit. They cannot re-litigate entitlement by adverse possession; the suit is beyond redemption.

p. 2

Legal principles established

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  • Persons covered by the eviction order as servants, agents or workers of the defendants in the former suit, though not named parties, are deemed parties under explanation 6 of Section 7 of the Civil Procedure Act and cannot re-litigate the same issue.
  • A suit built around and provoked by an eviction order issued in execution of a final judgment is res judicata and the court lacks jurisdiction to try it.

Court orders

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  1. 1.The suit is struck out with costs to the first defendant
  2. 2.No costs awarded to the second defendant as he did not participate in the proceedings

Authorities

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Legislation

  • Civil Procedure ActSection 7 (read with Explanation 6)

Cases cited (5)

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Henderson v Henderson
    [1843] 67 ER 313
  • David Sironga Ole Tukai v Francis Arap Muge & 2 Others
    Civil Appeal No. 76 of 2014 (Nairobi), judgment of 18th December 2014
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - the judgment does not expressly cite the provision; the suit was commenced by originating summons dated 23rd September 2019

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, "Daniel Kipilat Rotich & 32 others v David Sironga Tukai & Land Registrar Narok [2020] KEELC 427 (KLR)", Case Analysis (2020). Nakuru HCC (Originating Summons) No. 58 of 2019 (as inferred from the originating summons dated 23rd September 2019; number not expressly stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/427/eng@2020-12-03

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