Mbarak Said Ali & another v Sultan Palace Development Limited [2020] KEELC 776 (KLR)
The bottom line
#Kenya's High Court struck out a land claim because the squatters had already settled for Kshs 950,000 and had not occupied the land for the required 12 years.
What this practically means
#Executive summary
#Key legal issues
#Whether the present suit is res judicata given the consent judgment in HCCC No. 375 of 2009 (OS)
Yes. The subject matter was identical and the consent order effectively determined any claim the Plaintiffs had on the suit property; they cannot relitigate against the successor in title.
The parcel in the former suit was described as Plot No. 1075/III/MN Grant No. 19153 (8.169 Ha), a reversal of the description in the present suit. The Plaintiffs did not deny the consent and never moved to set it aside. Although the defendant in the former suit (NSSF) differs from the present defendant, the cause of action is the same, and parties cannot evade res judicata by adding or changing parties. The consent has the force of res judicata.
Whether the Plaintiffs' adverse possession claim had crystallised against the Defendant
No. The Defendant purchased the property on 11th March 2011, only eight years before the suit was filed, four years short of the 12 years required under Section 7 of the Limitation of Actions Act.
Time for adverse possession stopped running when the Plaintiffs entered the 2010 consent, which made their occupation permissive. Against the new registered owner, only eight years had elapsed by the time of filing, so the requisite 12-year period had not accrued.
Whether the suit is an abuse of the Court process
Yes. Having accepted Kshs 950,000 to relinquish their interest, the Plaintiffs abused the process by bringing this suit and failing to disclose the former suit.
The Plaintiffs accepted payment from the predecessor in title to relinquish their interest and vacate, then waited eight years to sue the new owner on the same claim without disclosing the former suit's existence or outcome. Litigation compromises are binding and cannot be discarded unilaterally.
Legal principles established
#- All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively
- A consent judgment sanctioned by the Court has the effect of res judicata in respect of the matters dealt with therein
- Parties cannot evade res judicata by adding other parties or causes of action in a subsequent suit
- A claimant must prove 12 years of exclusive, open and uninterrupted possession to claim title by adverse possession
- A consent compromising a claim makes subsequent occupation permissive, stopping time running for adverse possession
Court orders
#- 1.Allowed the Respondent's Preliminary Objection and the Motion dated 26th November 2019 in terms of prayers Nos. 3, 4 and 5
- 2.Struck out the Originating Summons with costs
- Jurisdiction invoked
- Original jurisdiction of the High Court over land claims, adversive possession under the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbarak Said Ali & another v Sultan Palace Development Limited [2020] KEELC 776 (KLR)", Case Analysis (2020). Originating Summons dated 7th February 2019, filed 14th May 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/776/eng@2020-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.